Long Island Guardianship Attorneys
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Whether due to accident, illness, or just old age, there may come a time when a loved one is no longer capable of managing his affairs and personal needs. In such difficult situations, the courts may step in and appoint a guardian to manage the care and the properties of the incapacitated person.
A guardian is someone who is 18 years of age or older and may include an entity, local agency, or social services organization that acts on behalf of someone on a short- or long-term basis. The process is conducted in accordance with Article 81 and the New York Social Services Law & Regulations.
The court seeks to consider the "functional level" of the individual, or that which he has the ability to do, rather than his limitations. The individual’s functional limitation must be considered in order to outline the role and duties that the guardian will focus on. Generally, these are matters involving finances, property, and personal care. The goal is to determine a “least restricting form of intervention” meaning that the guardian should be limited in his powers to allow the incapacitated individual to have independence and control up to his or her level of ability.
When May a Court Appoint a Guardian?
In determining whether a person should have a guardian appointed, the courts will assess the situation based on necessity. Evidence must be apparent and convincing that not doing so would have negative consequences for the individual. An assessment must focus on the person’s day-to-day ability to manage his or her affairs. This may include a medical summary outlining physical and mental impairments, substance or alcohol dependency, and illnesses. Often there are medications being prescribed that are affecting conduct, judgment, or reasoning.
Requirements for a Guardianship Petition
The petition must contain some key information which will be confirmed under oath, including:
- Basic information about the incapacitated individual (age, address, etc.)
- Contact information for any people who live with him, or others with any form of established relationship
- An assessment of his functional level and consequences of inabilities
- Actual incidents or occurrences that demonstrate the potential for future harm
- The length of time necessary for the guardianship (temporary, permanent, etc.)
- His current financial resources and public assistance
- Reasons why the potential guardian is suitable for the role
- Any conflicts of interest between the petitioner and the individual suspected of being incapacitated
Duties of a Guardian
The duties a guardian assumes vary according to the needs of the situation, but they usually include:
- Managing the person's finances, paying the rent, bills, etc.
- Seeing to the person's daily hygienic, nutritional, and medical needs.
- Making medical decisions the individual is unable to make.
- Making housing arrangements.
- Making certain end-of-life decisions.
Appointing a Guardian
The courts generally step in and appoint a guardian for one of several reasons:
- The individual has no known spouse, relatives, or children.
- The individual didn't previously appoint someone to act as power of attorney over him and his estate.
- The individual's health and safety are at risk.
When possible, the court will appoint a child, spouse, or close relative to serve as the guardian. If none of the above is available, willing, or capable, the court can appoint a healthcare facility or other appropriate non-profit organization as the guardian. In some cases there may be disagreement over who should serve as guardian. Sometimes relatives disagree over who is best suited for the role. In these situations, the court can appoint an independent guardian who is bonded and approved to serve in that position.
Compensating the Guardian
Courts may determine that reasonable compensation be paid to the guardian based on the needs and scope of services and management that he or she will perform. The level of compensation may be modified based on the added or reduced scope of responsibility. If a court deems that the guardian has demonstrated a failure to execute duties in a reasonably satisfactory level, the compensation may be reduce or eliminated.
Frequently Asked Questions
Q: What Types of Guardianship Are There?
A: Article 17A: This is a broadly based form of guardianship which includes the decisions ordinarily made by one’s parents. These may be executed on behalf of someone under the age of 18 or adults who have significant impairment. This form of guardianship is obtained exclusively through the surrogate courts and is common when a mentally disabled child turns 18 years old.
Article 81: An Article 81 may apply when an individual suffers a severe illness or incurs an injury that limits mental capacity. A petitioner may also do so on behalf of an elderly family member that has begun exhibiting cognitive degeneration. Article 81 is more specific in that it may allow the guardian to be responsible for certain defined decisions.
Q: Who Can Be Appointed as Guardian?
A: In many cases the guardian is a family member or other individual with an existing relationship; however, a petitioner may be someone who recognizes the need and wishes to proceed based on concern for the at-risk person’s well-being. If family members disagree on who should be the guardian, the court may seek an independent party. To prevent the incapacitated individual from exploitation, courts may implement a bond, or form of insurance, to protect assets.
Q: What Are Activities of Daily Living?
A: These may include assistance with eating, assisting with managing medication, providing transportation, cooking, housekeeping, shopping, and more.
An incapacitated person is very vulnerable. Too often we hear tragic stories of mental and physical abuse of the elderly, or of an underhanded person taking charge of their finances and emptying bank accounts. If you suspect an incapacitated individual is being abused or exploited, it is important to take action and notify the proper authorities. If you feel that a relative or loved one is not properly being cared, it is important you take legal action. You can contest who is appointed guardian in court. However, laws surrounding guardianship are extremely complex and different in every state. For this reason, it's vital you get assistance from a highly qualified attorney well-versed in the intricacies of estate law.
Get Legal Help Today
At the Law Offices of Paul A. Boronow, PC, we have over 20 years of Long Island estate litigation experience and will use our expertise to help protect the physical and financial well-being of your relative, spouse, or loved one. To find out more about your legal rights and options, and get answers to your guardianship questions, call us at (516) 227-5353 for a free, no-obligation consultation. We can provide you with a comprehensive overview of your case and advise you on the best strategy to get the results you want. We will fight for you.
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