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When Is A Guardianship Appropriate For Your Elderly Loved One?


No one likes to be told that they need help managing their own affairs, but it is simply a fact of life that many of us will require it. If you have an elderly loved one that you believe may require some help, New York law allows family members to step in and request guardianship. However, state law also allows a much more flexible form of guardianship to take effect, preserving as much autonomy as possible for your elderly loved one.

The ‘Least Restrictive Form of Intervention’

The relevant law in guardianship situations is New York’s Mental Hygiene Act, Article 81. Unlike the guardianship laws in most other U.S. states, the NYS legislature explicitly expressed its intention to balance autonomy for a potential ward against the assistance that may be required for their needs to be met. In other words, the state will pursue the ‘least restrictive form of intervention’ that will allow the person in need to be assisted, but not deprived of liberty.

Article 81 guardians are different from guardians granted power under Article 17-A of the state’s Surrogate’s Court Procedure Act – the latter statute deals with the needs of intellectually disabled adults, while Article 81 governs adults with ‘incapacities.’ Colloquially, these two terms are often synonymous, but legally, an incapacitated adult is not necessarily one with an intellectual or developmental disability. It is crucial, if you seek guardianship in New York, to file your petition under the appropriate law.

Who Can Become A Guardian?

Anyone over the age of 18 with concern for an individual’s welfare has the right to petition to become their guardian. However, in order to actually be appointed, they must be vetted by the court. In addition, the alleged incapacitated person (AIP) has due process rights during the petition process and has the right to contest a guardianship appointment.

If the AIP consents, or the judge finds that the AIP requires enough assistance in managing their own affairs, the guardianship will be granted. With an Article 81 guardianship, the court order can be ‘tailored’ to the needs of the individual ward, allowing the guardian to assist on matters involving the person, property, or both. The incapacitated person always has a voice, but the guardian can assist in the matters on which the court grants them power to do so.

Contact A Westchester County or Putnam County Guardianship Attorney

If your elderly loved one is in need of assistance in handling their day-to-day affairs, you can seek to help them not just as a family member, but legally. A Westchester County or Putnam County estate planning attorney from Meyer & Spencer, PC can help you determine whether guardianship is right for your elderly loved ones, and if so, how to proceed. Contact our office today at (914) 741-2288 to schedule a consultation.



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