No one wants to see a loved one become unable to make decisions for him or herself.

If this happens, however, a court may appoint a substitute decision maker, called a “guardian” in New York or a “conservator” in Connecticut, to make decisions regarding a person’s personal care, finances, or both. A guardian or conservator is only appointed as a last resort if other, less restrictive alternatives, such as a power of attorney, are not in place or are not working.

Anyone interested in the well-being of an individual who may be incapacitated — called the “proposed ward” or “alleged incapacitated person” — can request a guardianship or conservatorship for that person. The person who files the petition does not have to be the person who acts as the guardian or conservator. An attorney is usually retained to file a petition for a hearing in the court where the proposed ward regularly resides, where he or she is physically present, or where he or she has assets. In New York this is done by filing in the Supreme Court of the appropriate county, and in Connecticut it is done by filing in the Probate Court of the appropriate town.

New York and Connecticut courts require that the proposed ward be present at the hearing unless he or she is unable to meaningfully participate in the hearing. The court will either appoint an attorney for the proposed ward or a court evaluator to make this determination. The attorney represents the proposed ward’s interests, and a court evaluator is a neutral third party who investigates the circumstances of the proposed ward and makes a recommendation to the court as to whether a guardianship or conservatorship is necessary. In some instances, the court appoints both.

At the hearing, the court determines if the proposed ward is in fact incapacitated and, if so, to what extent. A guardianship or conservatorship must have the least restrictions possible while bringing the necessary assistance to the proposed ward, and will be specifically tailored to that person’s individual needs.

If the court determines that the proposed ward is indeed incapacitated, the court then decides who an appropriate person is to act as guardian or conservator.

Who Can Be a Guardian?

A guardian can be any competent adult — a family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training, usually an attorney or social worker). In some cases, the proposed ward may have nominated the person they would like to serve as his or her guardian or conservator in advance by executing a durable power of attorney (in New York) or a durable power of attorney for health care (in Connecticut). A court will generally honor these wishes if the proposed ward was competent at the time they signed the document, and as long as the nominee has not rendered himself/herself ineligible for any reason. The proposed ward can also make his or her wishes known during the proceeding, if able. If two individuals wish to share guardianship duties, courts can name co-guardians.

There is a strong preference for the guardian to be a family member or person who has been involved in the proposed ward’s life before the guardianship or conservatorship. However, if a person is found to be incapacitated and a suitable guardian cannot be identified, courts can appoint a professional guardian, as discussed above, or a public guardian, which is a publicly financed agency that serves this purpose.

To learn more about guardianship in New York or Connecticut, speak with the qualified elder law attorneys at Kommer Bave & Ciccone LLP.

Attorney Advertising