Contested Guardianship in New York

Contested Guardianship in New York

If you are considering contesting an adult guardianship proceeding in New York, or are defending a contest, experienced New York adult guardianship attorney Daniel J. Reiter is ready to tirelessly advocate for you.

When Are Guardianship Proceedings Contested?

It is not uncommon for disputes to arise during a guardianship proceeding. Guardianship proceedings may be contested in a variety of circumstances, such as:

  • Disagreements about who should be the guardian;
  • Questions as to the validity of a power of attorney or advance directive previously executed by the “alleged incapacitated person” or AIP;
  • Concerns about elder abuse or mistreatment;.
  • Whether the AIP is actually incapacitated.

Attorney Daniel J. Reiter has extensive experience representing parties in contested adult guardianship proceedings in New York.

Family Members Cannot Agree Who Should be Guardian

A contested guardianship proceeding arises when family members disagree about who should serve as guardian.

A common scenario: multiple siblings each believe that they should serve as guardian for a parent.

Another example: A family who believes that the AIP’s financial or healthcare needs are not being properly addressed by the current guardian.

Questions Regarding the Validity of Advance Directives

If an AIP has executed a valid power of attorney and health care proxy, a guardianship is often not necessary because the AIP’s agents under the power of attorney and health care proxy have the power to make all necessary decisions.

However, if the AIP lacked the mental capacity necessary to execute a power of attorney or health care proxy, or the AIP was tricked or pressured into signing the documents, a court may find that they are invalid. In that case, a guardian may need to be appointed.

Agent is Not Acting in the Best Interest of the Disabled Adult

An agent under a power of attorney or health care proxy is a fiduciary, which means that they have a duty to act in the best interest of the AIP. If the court finds that they are not fulfilling that duty or are committing elder abuse or fraud, the court may revoke the power of attorney and health care proxy and appoint a guardian to act in their place.

The Alleged Incapacitated Person Does Not Want a Guardian Appointed

A person with diminished capacity may not recognize their limitations and may resist the appointment of a guardian. If the AIP objects to a guardian being appointed, the proceeding is contested.

Once the AIP objects to the appointment of a guardian, the person who brings the proceeding, called the “petitioner”, is subject to stringent rules of evidence. Attorney Daniel J. Reiter guides clients through this maze of evidentiary rules to ensure the most successful outcome possible.

Attorney for Contested Guardianship Proceedings in New York

If you need assistance with a contested guardianship proceeding in New York, Attorney Daniel J. Reiter can help. Daniel regularly represents parties in contested guardianship proceedings in New York City, Long Island, and Westchester County.

Learn more about Daniel J. Reiter, read testimonials from other people he has helped, and get answers to Frequently Asked Questions. Then contact the Law Firm of Daniel J. Reiter, Esq. today to schedule a consultation to discuss your case.

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Frequently Asked Questions

If I petition to have a guardian appointed in a Mental Hygiene Law Article 81 proceeding, 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. If there are no family or friends willing and able to serve, the judge can appoint a non-profit organization or “independent” professional guardian to serve.

My disabled child is about to turn 18. Am I automatically able to make decisions for them when they turn 18?

No (except for limited exceptions). In New York, parents are the natural guardians of their children until age 18. However, once a child reaches 18, even if they are developmentally or intellectually disabled, a parent cannot automatically make decisions for their adult child. Guardianship is often necessary for developmentally and intellectually disabled adults who do not have capacity to manage their own affairs without assistance.

If I am appointed guardian, can I force my ward to take psychiatric medication?

Although most guardians are authorized to make routine and non-routine medical decisions on behalf of their ward, the administration of psychiatric medication to a person who objects requires special authorization from a judge, even if you were already appointed guardian.

How long does it take to get a guardian appointed and authorized to act in a Mental Hygiene Law Article 81 proceeding?

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. However, if a guardian is needed immediately, the judge can appoint a “temporary guardian” while everything gets sorted out. This speeds up the process.

What is the difference between a guardian and a conservator?

Generally, none. New York used to use the terms conservator (today’s version of guardian of the property) and committee (today’s version of guardian of the person). Many states still use the term conservator, but the concept is the same.

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