If you have a parent or another close New York loved one who cannot manage their money and other affairs, you can petition for guardianship. The court will award you guardianship if the person agrees or if the judge finds that individual to be incapacitated.
When does someone need a guardian?
Guardianship is frequently invoked under elder law proceedings when an individual suffers mental and physical declines caused by chronic and severe illnesses. Circumstances can vary, but commonly the court will consider someone incapacitated when suffering from Alzheimer’s or another type of dementia or if they still have cognitive skills but cannot physically take care of themselves and their personal needs.
The guardianship process
The person for whom you petition for guardianship is called the “alleged incapacitated person” or AIP. Your petition must include a description of the AIP’s inability to perform certain functions. An evaluator will meet with that individual to determine their abilities and then file a report with recommendations. The case then goes to a hearing before a judge. Problems can arise if the AIP does not agree to the guardianship, A jury trial can occur in such a situation. However, most of the time, the court will consider many different factors and appoint a guardian when there is “clear and convincing evidence” to require one.
Securing the future
If you believe that you or someone in your family may need a guardian in the future because of medical challenges, you may be able to avoid clashes by drafting an agreement that could take effect in the future when needed. You can obtain guardianship through an estate plan or MHL Article 81 action.
Assuming guardianship gives you significant responsibilities. You will pay bills and make significant decisions impacting your loved one’s life and health.