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How Do I Obtain Guardianship Over an Elderly Relative?

Daughter is reading to elder guardian and elder outside

If your parent or other family member has become highly forgetful, or appears to be having an increasing amount of trouble keeping up with day-to-day tasks, you may be starting to wonder if it’s time to take a greater role in their care and finances. New York State’s guardianship law offers flexible options to take over parts or all of the responsibility to make decisions about one’s finances and medical care. An attorney skilled in elder law and guardianship will be able to assist you in petitioning for guardianship when someone you love is no longer able to care for themselves.

What is considered “incapacity” under the law

Under New York State law, an individual will be considered “incapacitated” for the purposes of establishing a guardian where they are found to be “unable to provide for personal needs and/or property management and the person cannot adequately understand and appreciate the nature and consequences of such inability.”

Petitioning for Guardianship

In order to establish guardianship over an individual, you or your attorney must file a petition with a local court. This petition must detail the reasons that guardianship is sought, including the level of functioning; specific incidents or transactions that led you to believe the individual is no longer capable of caring for themselves either physically or financially; the extent of the powers being sought over the alleged incapacitated person; the alleged incapacitated person’s financial resources and debts; and other resources that the petitioner has considered in addition to or in lieu of guardianship. Other resources may include a power of attorney and/or health care proxy. If the individual does not have these documents, the petitioner should explore whether the individual is able to execute these documents.

When a petition is filed with the court, the judge will appoint a court evaluator to investigate the person over whom guardianship has been sought. The evaluator will then make a recommendation to the court on the extent of control that a guardian should take over the alleged incapacitated person’s affairs. If there is found to be good cause to appoint a guardian, the court will determine how to take the smallest possible amount of control away from the individual while ensuring that their personal and financial needs are met. The court can also appoint a guardian on a temporary basis where the individual is expected to recover.

Forms of Guardianship

Frequently, an individual needs the help of a guardian due to an inability to keep up with financial responsibilities, such as paying bills or making necessary purchases. A guardian appointed to handle an incapacitated person’s finances is labeled a “guardian of the property.” A court may appoint a guardian of the property where the individual has fallen victim to con artists preying on the elderly, or who has been unable to keep up with the payment of bills.

Where an elderly person isn’t able to care for themselves physically or keep up with home maintenance, the court can appoint what’s called a “guardian of the person.” This type of guardian may be authorized to hire in-home help for the incapacitated person, place them in a nursing facility, or make medical decisions for the person where they appear to be incapable of doing so.

For assistance in seeking guardianship over an elderly relative, contact the experienced elder law attorneys at Rusk, Wadlin, Heppner & Martuscello for a consultation at 845-331-4100 in Kingston or 845-236-4411 in Marlboro.

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