Guardianships: An Overview
Caring for an elderly parent, grandparent or friend who has lost their mental capacity can be a difficult undertaking. This is especially the case when the elderly individual cannot be trusted to make sound financial and personal care decisions. The implementation of a guardianship is one of the best courses of action to help an individual with a diminishing mental capacity who can no longer make important decisions for themselves or who do not appreciate the consequences of their decisions.
A guardianship is a legal relationship that can be created by naming a person or institution in a will. For purposes of this article, a guardianship is established by the court who assigns someone to take care of an incapacitated adult. After a petition for guardianship is filed and the need established, the court appoints a guardian to care for the incapacitated person who cannot take care of herself. As a formal designation, the individual the guardian protects is considered a “ward.” In this context, the ward is usually an elderly person. Different jurisdictions vary in the terminology used to describe the guardianship-ward relationship. In some jurisdictions, a guardian is referred to as a custodian or as a conservator. Depending on whom the guardianship relationship is with, some jurisdictions have terms that describe the age of the individual who is under guardianship. In those jurisdictions, the protector of an elderly person is referred to as a conservator whereas the protector of a minor child is called a guardian. Knowing the meaning and usage of the terminology can be helpful to ensure a confusion-free process. When a guardian acts for the benefit of her ward, she does so under a fiduciary standard of duty, which is the highest duty of care.
Which Individuals are eligible?
The basic requirement needed to become eligible for guardianship is a diminished or absent capacity. This lack of or diminished capacity can be caused by injury or illness. Two of the major illnesses that cause elderly people to lose their capacity is Alzheimer’s disease and dementia. Dementia and Alzheimer’s afflict individuals causing memory loss as well as the inability for clear and logical thinking. These are all valid reasons to consider filing for guardianship, especially where the allegedly incapacitated person is a risk to herself or others. As part of the petition, the court will make a determination regarding the individual’s ability to handle her own affairs and activities of daily living.
How to Obtain a Guardianship in New York
A guardianship for an elderly person is normally filed under Article 81 of the New York Mental Hygiene Law. These cases are brought in the Supreme Court. Upon filing of the petition, the guardianship judge may appoint a court evaluator who will meet the allegedly incapacitated person. On behalf of the court, the court evaluator will investigate and report on whether or not a guardian should be appointed and if so, the extent to which powers will be granted to the guardian. The court may also appoint an attorney to represent the allegedly incapacitated person. Subsequently, the court will hold a hearing, which may or may not be adversarial, to decide on the case based on the evaluator’s report and other evidence.
Contact Us for Legal Assistance
It is wise to involve an attorney in the filing of your guardianship petition. This process places a large amount of discretion in the hands of the court, which makes the decision a critical one. To learn more about the process and how to best prepare for a guardianship petition, contact an experienced elder law attorney at Meyer & Spencer, P.C. We serve individuals and families in Pleasantville, Westchester, Mahopac and Putnam Counties.