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My loved one needs help. Can I appoint a Guardian?

Article 81 is a Guardianship law in New York. It is known as the "Mental Hygiene Law," which allows the State to select a Guardian to help protect and handle the financial or personal dealings of an individual who is unable to do so as a result of an incapacity. Generally, an incapacitated individual is one who is incapable of taking care of his or her own needs. Such persons need support from others, as they cannot manage important aspects of their lives.

For instance, let's say that a valid Power of Attorney was not executed when a person, now incapacitated, had mental capacity. The person no longer has the ability to take care of things, make decisions and administer life affairs. In this type of situation, an Article 81 Guardianship could be a great option.

Guardian powers

It is important to recognize that not every Article 81 Guardian is granted the same level of control. The court specifically defines Guardianship orders; the granted responsibilities must be those that tend to the needs of the debilitated individual. For instance, a struggling person may not be capable of paying bills, but he or she may be able to make important medical choices. In such a case, a court would employ a Guardian with duties limited to monetary supervision.

In general, an Article 81 Guardian can have several responsibilities. As mentioned, the duties depend on what the incapacitated individual needs. The most frequent proceeding is one brought as a result a person's inability to manage expenses. A Guardian can assist with this problem by securing the right to make payments, gather assets, create investments and more -- anything deemed appropriate for the disabled person.

However, note that a Guardian is not just someone who pays the bills. There are many other Guardianship powers, including the following, which can help support the person in need:

  • The power to thwart self-neglect
  • The power to stop physical abuse
  • The power to stop financial abuse
  • The ability to engage in Medicaid planning
  • The right to control tax planning

If you have a loved one who may need extra assistance, Article 81 Guardianship could be helpful. Want to know more about the Guardianship program? Speak with an estate planning or elder law attorney in your area. A lawyer can tell you who can be a Guardian and detail the duties and responsibilities under Article 81.

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