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5 Things to Know About Guardianship Cases Involving Older Adults


Realizing that your elderly parent or other elderly relative is struggling to make important decisions as a result of Alzheimer’s disease or another form of dementia, it could be time to find out about adult guardianships.  An adult guardianship can allow you to protect your elderly loved one’s interests when that person is incapacitated.  Depending upon the specific circumstances, the courts can tailor an adult guardianship to work differently from case to case.  The following are five things to know about guardianship cases involving older adults in Westchester County.

  1. New York Law Considers Different Types of Guardianship Cases

There are different types of guardianship cases under New York law.  First, guardianship cases can involve a person who is 17 years old or younger, either in situations where the minor has inherited more than $10,000 or the minor’s parents cannot provide care.  Then, there are two different kinds of adult guardianship cases. First, there are adult guardianships under Article 17-A concerning guardianship over an adult with intellectual or developmental disabilities.  Then, there are adult guardianship cases under Article 81 involving guardianship over an adult who becomes functionally incapacitated.

  1. Guardianship Cases Begin with a Petition

Adult guardianship cases begin with a petition being filed in Court.  Anyone who is 18 years old or older can file a petition to become a guardian over another person.  E very guardianship case will involve a hearing that requires the petitioner to prove that a guardianship is necessary.

  1. Adult Guardianships for Incapacitated Elderly Adults Must Be Filed in Supreme Court

Most guardianship cases in which a person petitions for guardianship over an elderly adult are brought under Article 81 of the Mental Hygiene Law.  These cases must be filed in Supreme Court. Different kinds of guardianship cases are filed differently.  For example, other kinds of guardianship cases must be filed in Family Court or in Surrogate’s Court.

  1. Guardians Can Be Appointed to Manage Different Aspects of a Person’s Life

In New York, a guardian can be appointed the guardian over the person (to make decisions about that person’s health care, for example), over the property (to make decisions about that person’s finances and how money is spent, for instance), or over both the person and the property. The judge will determine what type of guardianship is necessary under the circumstances.  Then, the judge can tailor the authority of the guardian to meet the needs of the situation.

  1. Incapacity in an Adult Guardianship Case Must Be Proven By Clear and Convincing Evidence

The evidentiary standard for a guardianship case is “clear and convincing evidence.”  It is important to understand that this is a higher evidentiary standard. The Cornell Legal Information Institute (LII) defines clear and convincing evidence as “evidence [that] is highly and substantially more likely to be true than untrue.”  Many people are under the mistaken belief that you need a physician to testify in order to prove incapacity.

Seek Advice from an Experienced Pleasantville Elder Law Attorney

Adult guardianship cases involving elderly parents and other loved ones can be extremely complicated. These cases can also be quite contentious, especially when the older adult does not believe that she or he is legally incapacitated. Yet guardianship is often one of the only ways, depending upon the circumstances of the case, to protect an older adult. One of our Westchester County guardianship attorneys can speak with you about your case. Contact Meyer & Spencer, PC today to learn more about the services we provide.




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