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Possible Disputes in a Guardianship

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Guardianship and Disputes

A guardianship is a legal relationship created by court of law between an assigned guardian and a person who becomes a “ward.”  It is a powerful resource and can be quite effective in the area of elder care and asset planning.  The guardianship usually covers an incapacitated adult or sometimes a minor child. The guardian asks the Court for  the legal right  to care for the ward.  This request typically includes duties to make decisions on the ward’s behalf, managing the ward’s property as well as finances. Because of the extraordinary amount of power a guardian has over the ward, there are situations where disputes can arise.  Disputes can arise from the court’s selection of the guardian.  Disputes can arise about whether a guardian is even needed. Disputes can arise over how the guardian is managing finances.  And of course, disputes can arise about any terms of agreement surrounding the personal care of the ward.

Selection of Individual

In New York, guardianship of an incapacitated adult is covered under Article 81 of the Mental Hygiene Law.  After someone, typically a family member, files a Petition for Guardianship, the process continues when a judge appoints a court evaluator.  This court evaluator serves as a guide to the court.  The court evaluator meets with the allegedly incapacitated individual (commonly known as an “AIP”) to investigate and report as to whether or not a guardian should be appointed.  If the court evaluator decides that guardian is necessary, they will help the court by recommending what powers the guardian should have.  The court evaluator might also suggest to the court who would serve as the best guardian. After these recommendations are made, the court will hold a hearing on the matters in questions, if any.  Of course, disputes can arise within families where a majority does not agree with the individual selected for the role of the guardian or for the necessity of the guardianship.  For example, a husband can be selected as the guardian for his wife over the objection of adult children who claim that there was a prior domestic abuse situation between the guardian and the ward.

Powers of the Guardian

The guardian has an array of powers over the ward and his property.  These powers are, of course,  within the limits of the power the court has allotted to the guardian.  However, it is normal that the guardian has much authority to steer the life of the ward.  The guardian does not operate in a vacuum.  The guardian and his/her actions are under the auspices of the court who has authority to audit their decisions and determine whether or not they are fit to continue serving the court in that capacity.

Petitions by Parties in Interest 

The essential thing to understand about guardianships is that the court is the ultimate caretaker.  All decisions taken on behalf of the ward must be a decision the court would approve.  As such, parties in interest can petition the court to review the guardian and determine whether they are fulfilling their mandated duties.

Contact Us for Legal Assistance

It is important to involve an attorney when creating a care plan for an elderly loved one. To learn more about the elder planning options that best suits your needs, contact an experienced elder law attorney at Meyer & Spencer, P.C. We serve individuals and families in Pleasantville, Westchester, Mahopac and Putnam Counties.

Resource:

nycourts.gov/CourtHelp/Guardianship/AIP.shtml

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