What is Guardianship?
When a loved one can no longer make decisions regarding his or her personal and/or financial affairs or is a victim of elder abuse (physical or financial), he or she may need the protections provided by a Guardianship proceeding. Physical or mental limitations such as Alzheimers Disease, Dementia, Multiple Sclerosis, Mental Retardation, Developmental Disability and Senility, to name a few, may prevent someone from being able to make appropriate health care, financial or property decisions. In such cases, the best choice may be the appointment of a Guardian for that person or their property, especially if an appropriate power of attorney or health care proxy is not in place.
Article 81 of the New York State Mental Hygiene Law authorizes a court to appoint a guardian to manage the personal and/or financial affairs of a person who is unable to manage for herself or himself due to a physical or mental incapacity (proceedings for individuals with mental retardation and developmental disabilities are addressed by a different statute and procedure as is guardianship for minors). A guardian could be a trusted family member, a close friend, a disinterested but trustworthy third party or an independent court appointed guardian. Guardianship orders are tailored to meet the needs of the person who is incapacitated while allowing them to maintain as much control and independence as possible.
Powers granted to guardians may include:
- Authority to Pay Bills for an Incapacitated Person
- Power Necessary to Prevent Self Neglect
- Stopping Financial Abuse
- Stopping Physical Abuse
- Medicaid Planning
- Tax Planning
In order for a guardian to be appointed, a person called a petitioner will ask the court to appoint a guardian. The person who you believe needs a guardian is called the “alleged incapacitated person,” or the “AIP”. The guardianship petition must include a description of the AIP’s inability to function. The judge then appoints an “independent evaluator” who will meet, interview, and consult with the AIP about the AIP’s condition and capacity to care for himself or herself. The independent evaluator can be a representative of a mental hygiene legal service, an attorney, a physician, a psychologist, an accountant, a social worker, or a nurse, chosen by the judge from a list of pre-approved people. The independent evaluator then files a written report including observations and recommendations. After that, the judge will have a hearing. The AIP will attend if possible. If the AIP does not want a guardian and does not have a lawyer, the judge will appoint a lawyer for the AIP, to fight the case.
During the hearing, both the petitioner and the AIP can bring evidence about the condition of the AIP. Sometimes, there is a jury trial on the issues that were brought up during the hearing, especially if the AIP does not want a guardian. The court will then decide whether to appoint a guardian. The court will appoint a guardian only if there is “clear and convincing evidence” of incapacity and the AIP is likely to suffer harm because of it. This generally means that you need to prove that it is more likely than not that the person is incapacitated. The court is supposed to structure the guardianship so that it does not interfere more than necessary with the life of the incapacitated person. That person should be given as much independence as possible. As guardian, you would be required to make an initial and annual reports to the court about the AIP’s condition and how you have handled the AIP’s money.
Article 17-A Guardianship
When a person turns 18 years old they are considered legally competent to make decisions and enter into contracts for themselves. No one else is legally allowed to interfere. If a person is intellectually disabled or developmentally disabled, is unable to competently make decisions for themselves and over 18 years old, parents and loved ones can petition the Court to appoint a guardian for him or her. A certification from two doctors is required.
Both Family Court and Surrogate’s Court grant petitions to become the legal guardian of a person under the age of 21 when parents are absent, unable or unwilling to protect the person’s best interests.
CPLR Article 12 Guardian Ad Litem
Courts may appoint guardians for parties involved in litigation under the age of 18 if they don’t have a parent or guardian to protect their interests.