Guardianship of an adult is a court-supervised arrangement where one person assumes responsibility for an adult who is incapacitated. If a loved one starts experiencing memory loss or becomes unable to make decisions for themselves for any other reason (including accident or sudden illness), you may consider asking the court to appoint a guardian for them. In New York State, this petition can be brought to the Supreme Court under Article 81 of the NYS Mental Hygiene Law. Pursuing a guardianship is the remedy of last resort if less restrictive alternatives, such as a power of attorney and health care proxy, are not in place or are not working.

Determining Incapacity in an Adult Guardianship

Determining whether someone is incapacitated to make their own decisions is a complicated process. Article 81 of the New York Mental Hygiene Law states that, “The determination of incapacity shall be based on clear and convincing evidence.” Therefore, the court will look at a number of factors in determining the need for a guardian. Such as:

• Ability to independently perform activities of daily living (identify functional limitations)
• Appreciation/insight into their functional limitations
• If harm will come to them if a guardian is not appointed

Petitioning the Court

In New York State, a family member, a person who resides with the person alleged to be incapacitated, or any adult over the age of 18 who is concerned with the welfare of the person alleged to be incapacitated, among others, can petition the court for a guardianship. This petition will lead to a court hearing, at which the court will determine if the person is incapacitated. If they are found to be, the court will determine the extent that the individual requires assistance. The court will also decide if the person seeking the role of guardian is qualified to act as guardian.

Guardianship of the Person

In cases where a person cannot manage their activities of daily living (as to their personal care), the court can appoint a Guardian for Personal Needs. A personal needs guardian is granted the authority to make decisions about the person’s personal care or assistance, their social environment, and their medical decisions. The court works to impose the least restrictive guardianship on the person, by tailoring the powers of the guardian to the specific needs of the person. Other options, such as a health care proxy and other advanced directives, should first be considered before pursuing a guardianship.

Guardianship of the Property

In cases where an adult cannot manage their finances, courts can appoint a Guardian for Property Management. Property guardianship can give the guardian the authority to oversee all aspects of the person’s finances, such as bill payment, and managing or selling real property, for example. While providing protection and support, guardianship limits autonomy. Therefore, the court in granting property management powers to the guardian attempts to tailor those powers to be the least restrictive to the person possible. Those facing challenges with financial decisions should, along with their loved ones, first consider other options such as financial power of attorney.

Court Oversight

A guardian can be any qualified and competent adult — the ward’s spouse, another family member, a friend, a neighbor, a professional guardian (an unrelated person who has received special training), or an independent guardian appointed by the court. New York State has strict guardian education requirements, with a guardian being required to complete a training program before being able to take over their guardianship duties. These include learning their legal duties and responsibilities as guardian, as well as the rights of the incapacitated person.

Guardians are expected to act in the best interests of the ward. Therefore, courts hold guardians accountable for their actions to ensure that they do not take advantage of or neglect the ward. A guardian is required to file annual, detailed reports with the court to show proof they have adequately cared for the ward.

Consult with Your Attorney

At Kommer Bave & Ciccone LLP, we represent clients in contested and non-contested guardianship proceedings under Article 81 of the Mental Hygiene Law in New York in the Supreme Court. Our elder law attorneys have the compassion and dedication to represent individuals and families during these often very difficult proceedings. Let us be your guide – call our attorneys today (914) 633-7400.

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