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Does my loved one need a guardian?

Confused Elder Person

Whether guardianship is appropriate for a loved one depends on a variety of factors. I help New Yorkers determine the best legal solution for mentally incapacitated loved ones, whether through guardianship or other methods.

Many families face the difficult task of caring for a loved one as they age, or if they become disabled. But arranging for care becomes even more complex and exhausting when the person is mentally disabled. I can help.

Do you have a loved one who:

  • has stopped paying their bills?
  • has become paranoid or delusional?
  • is vulnerable or being scammed?
  • has such poor memory that they have trouble performing basic tasks?
  • is hoarding or living in filth?
  • are not who they used to be?

Guardianship may be the answer. However, guardianship results in decreased rights and liberties. Therefore, before a guardian can be appointed, Judges in New York are required by law to ensure there aren’t any alternative solutions to guardianship, such as a Power of Attorney.

Sometimes guardianship is the only answer

Guardianship makes sense for an adult who is alleged to be incapacitated and there are no other alternatives to guardianship. However, the Judge needs to be sure a person is legally “incapacitated” before they will appoint a guardian.

For a guardian to be appointed:

  1. The person must have mental limitations. In other words, they must be unable to perform essential tasks due to their mental issue. For example, if Fred cannot figure out how to pay his bills every month, he has a mental limitation.
  2. The person must be unable to understand the consequences of their limitations. For example, if Fred cannot figure out how to pay his bills every month and he cannot understand that this will eventually cause serious problems, including eviction, then Fred does not understand the consequences of his limitation.
  3. Finally, the person must be in danger because of their limitations. If Fred cannot pay his bills, but Fred’s daughter, Jane, is paying the bills for him from a joint bank account, he is not in any danger (at least when it comes to paying his bills).

If this test is satisfied, the court usually appoints a guardian.

Can I be the guardian?

Judge in Courtroom Banging

That’s up to the Judge, and there are a lot of factors Judges consider when choosing the guardian. Luckily, Judges usually prefer that family serve as guardian of their dependent loved ones.

If, after the guardianship hearing, the Judge declares the person legally incapacitated, the Judge will appoint a guardian. If the person is married, their spouse will usually serve as guardian if they are willing and able.

If the person has adult children, but no spouse, the Judge may appoint one or more of the children to serve. On the other hand, Judges sometimes do not appoint adult children as guardian when there are fights or disputes between siblings. If siblings can’t agree on who should serve as guardian, or what’s best for mom or dad, the Judge may appoint as guardian a certified attorney, non-profit organization, or another appropriate person or organization.

Before you can serve as guardian, there is a certification course you must take, but it is fairly short and easy to complete. You don’t need to take a test. If you are appointed guardian, you should consult with an attorney to make sure you are fulfilling your legal duties.

How do guardianship proceedings begin?

If someone wants to have a guardian appointed for another person, they must file the appropriate documents with the court.

After they file the necessary documents, the Judge will appoint a Court Evaluator, which is a person with a special type of certification to investigate the matter. The Court Evaluator is said to be the “eyes and ears” of the court, and is usually an attorney in private practice. The Court Evaluator will render a written report to the Judge.

The Judge will often appoint a certified attorney to represent the alleged incapacitated person. A hearing will occur very soon after the guardianship proceeding begins. A hearing is very similar to a trial, but it’s much less formal and much shorter.

Do I need an attorney to bring a guardianship proceeding?

You do not legally need an attorney to bring a guardianship proceeding, but if you want to win and make sure your loved one gets the care they need, an experienced and competent guardianship attorney is essential to success. Experienced guardianship attorneys:

  1. understand the unusual procedural rules and court customs in adult guardianship proceedings in New York;
  2. understand how to deal with complex family dynamics and drama, and can assist with the intense emotions and exhaustion that accompany these matters;
  3. understand complex property laws;
  4. understand the rules of evidence and rules that govern trials;
  5. understand the art of persuasion and negotiation; and
  6. are tireless advocates.

What powers do guardians have?

The Judge will only give the guardian the powers they need to protect the incapacitated person. If the incapacitated person can’t manage their own finances, the guardian will have the power to help with financial management. The guardian will have that power to move the person to a nursing home (but will usually need court approval beforehand). On the other hand, if the incapacitated person can do some things on their own, like choosing their own doctor or buying their own food, the guardian will not have the power make those decisions on the person’s behalf.

My mom/dad does not have a power of attorney, but needs help. Are there other alternatives to guardianship?

There may be. Guardianship is a last resort. If a mentally incapacitated person can be cared for without guardianship, then guardianship is not appropriate. For example, Silvia, an 83-year-old widow, never executed a power of attorney or health care proxy. But she did open two joint bank accounts with her only daughter, Jessica. The bank accounts have plenty of money in them to meet Silvia’s financial needs for a long time. Silvia also receives income every month from social security and a pension, which Jessica deposits into the account on Silvia’s behalf.

Over time, Silvia loses mental capacity, and needs help and support. Jessica, the daughter, can use funds from the joint bank accounts to pay Silvia’s bills and hire home care aides, as long as Silvia does not object. If Silvia needs medical decisions made for her, Jessica can make those decisions on Silvia’s behalf pursuant to New York statute.

The Judge would probably deny an application for the appointment of a guardian. Silvia’s needs are being met in a way that does not interfere with Silvia’s rights and liberties.

Are there multiple ways to have a guardian appointed for an adult in New York?

Yes. This blog post deals with the guardianship proceeding in New York designed for adults who lose mental capacity later in life and who have not engaged in prior legal planning. There is a second type of guardianship proceeding designed for people who are permanently mentally disabled and about to turn 18 years old.

I need help, what should I do?

You should call me to discuss what’s going on at (646) 820-4011. You can also email me at I handle adult guardianship matters every day, teach a course to other attorneys on the topic of adult guardianship, and am published on the topic of adult guardianship.

Daniel J. Reiter, Esq.

Daniel J. Reiter, Esq.

Daniel J. Reiter is an adult guardianship and estate litigation attorney in New York City.

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