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Guardianship FAQs

There are many misconceptions about adult guardianship in New York. With this blog post, we hope to dispel some of these myths and clear the record.

My loved one won’t agree to a guardian, so what’s the point?
This is a very common concern, but the Judge will ultimately appoint a guardian if your loved one needs one. In practice, it doesn’t really matter what your loved one wants for purposes of determining whether a guardian is appointed. The Judge will determine whether a guardian should be appointed primarily based on your loved one’s needs, not your loved one’s desires. Does your loved one have a “functional limitation”? Do they “understand the nature and consequences” of their functional limitation? That’s the test.

How long does it take to get a guardian appointed and authorized to act?
There is no set time. However, from the time counsel is retained, it usually takes about 2-4 months total for the guardian to begin acting. If a guardian is needed immediately, we can ask the Judge to appoint a “temporary guardian” while everything gets sorted out. This can be very helpful and expedites the process immensely.

Isn’t guardianship complicated?
Yes, but it won’t be complicated for you with proper counsel and guidance. An experienced adult guardianship attorney does most of the work. You have two primary jobs: (1) provide us with information and facts, and (b) testify at the hearing. We will prepare you to take the stand and testify. Your job is to be a loving family member. Let us be the expert.

What if I’m scared my loved one will hate me for bringing a guardianship proceeding?
Does your loved one really understand what’s going on or how severe their situation is? If they need help, getting help is usually the right thing to do. But more importantly, we can assist you in softening the blow by showing you how to properly approach your loved one and explain guardianship.

I’m also scared that this will stir things up with my family. Can you help me with that too?
Absolutely. Just as we can strategically approach the person who needs a guardian, we can also strategically approach other family members to avoid (to the extent possible) family fights.

Will I have to serve as guardian?
No. Even if you are the “Petitioner” – the person who is asking the Judge to appoint a guardian – you can ask the Judge to appoint someone else. There are individuals who are trained to serve as “independent” guardians. In other words, they are professional guardians who have no relationship to you or your family. We can also propose a close friend or other family member, depending on the situation.

Daniel J. Reiter, Esq.

Daniel J. Reiter is an attorney admitted to practice in New York. Mr. Reiter focuses in the areas of estate and trust litigation, non-routine Surrogate’s Court work, adult guardianship and mental health law, power of attorney litigation, and civil litigation and dispute resolution. He also routinely practices in the areas of estate planning, elder law, and Medicaid.

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