Compassionate and Creative Guardianship Attorney Guardianship for Incapacitated Adults
New York Mental Hygiene Law Article 81 provides a procedure for protecting elderly people and people with disabilities who can no longer manage their own finances or personal needs. An “interested person” (a relative, a friend, or anyone else interested in the well-being of the elderly or disabled person) can petition the Court to appoint a guardian. A common situation necessitating a guardianship is a person caring for an elderly parent who suffers from dementia. If the elderly parent has not planned for his or her incapacity, the caretaker may need legal authority to access the parent’s financial resources to pay for medical care or to make health care decisions for the parent.
What is “incapacity”?
New York Courts will grant a guardianship only if the elderly or disabled person consents to the guardianship or is incapacitated. Under Article 81, “incapacity” means that the person is unable to understand that he or she cannot manage his or her financial affairs or personal needs and therefore is likely to suffer harm. A guardianship is not necessary for elderly or disabled people who can manage their affairs or have a system in place to take care of their needs.
How can I avoid a guardianship for myself or my loved one?
Planning ahead for incapacity is the best way to avoid a guardianship for you or your loved one. A guardianship is a complex legal process that can deprive an individual of rights; therefore, all other options should be explored before beginning a guardianship proceeding. Advance directives, such as a Power of Attorney or Health Care Proxy, can provide a means for an incapacitated individual to handle his or her affairs without the need for a guardian.
Sometimes family members disagree about how an incapacitated person should be cared for. For example, one sibling may want his parent to stay in the community while the other sibling thinks a nursing home is a more appropriate level of care. We can help establish a resolution that is focused on the best interest of the incapacitated person. If litigation is unavoidable, we will advocate for a guardianship that is tailored to the specific needs of your loved one.