New York Guardianship Planning
When a person becomes incapacitated and financial or health decisions need to be made, it may be necessary to have a guardian appointed for that person’s protection and care. Many guardianship applications are undisputed, but sometimes families disagree about whether or not a guardian is necessary or whether the person applying for guardianship should be appointed as the guardian. When a guardianship application is filed, the Allegedly Incapacitated Person is usually referred to as an “AIP”.
We represent people who wish to have a guardianship established for an AIP. We also represent people who wish to oppose a particular guardianship application.
Under New York law, a hearing must occur before a guardian is appointed. When a guardianship application is filed, the Court appoints a Court Evaluator to make recommendations as to the AIP’s need for a guardianship and the fitness of the petitioner to serve as the Court-appointed Guardian.
A guardianship may not be needed if the AIP has previously executed:a valid Durable General Power of Attorney which is accepted by the AIP’s financial institutions, and a valid Health Care Proxy.
Sometimes allegations arise that a Durable General Power of Attorney or Health Care Proxy has been abused. In other instances, there may be two or more Agents who do not get along and are unable to make any joint decisions.
The best solution may be to get the Court to void the existing power of attorney and proxy, and appoint a guardian to make all decisions on behalf of the AIP.
If you have a relative or a friend whose physical or mental condition has made it impossible for him to make choices or communicate those choices, a guardianship may need to be initiated. Unless your loved one has created a power of attorney and named someone to act as an agent, guardianship may be the only option for getting the necessary authority to take control and manage his assets.
What Is a Guardianship?
If someone cannot make decisions for himself, that person will need a guardian. Children, for example, need guardians. Their parents usually fulfill this role unless a parent is unfit or unable to care for the child. Adults may need guardians too if they have a physical or mental issue that prevents them from making choices in their own best interest or communicating their needs and preferences.
When an adult needs a guardian, court proceedings must be initiated. A concerned friend, relative, or caregiver may begin the process by petitioning for guardianship. The court will conduct a hearing to assess whether the person in question is or is not incapacitated under the law. The court may then declare that person a ward. An assessment will be made of who would be an appropriate guardian for the ward, and that person will be appointed guardian.
The guardian manages assets of the ward and makes decisions on their behalf. Guardians have a fiduciary responsibility to act in the best interests of their ward, and the court will oversee the actions of the guardian in order to make certain that the guardian is fulfilling his role and living up to his duty.
Are There Any Alternatives to Guardianship?
Guardianship proceedings can be an emotional and costly process for family members or friends of an incapacitated person. An attorney can ease some of the burden.
A person can take steps now to simplify any future guardianship needs. While still of sound mind, a person may decide who their own future guardian will be by creating a power of attorney (POA). A POA allows you to name who will care for your needs in the event you become incapacitated. The agent could then take control of making decisions and managing assets without any type of court involvement or guardianship proceedings.
A living trust is another option, which allows for the management of trust assets.
Check out our Guardianship Planning Guide for more information.
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