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Elder Planning Isn't Just For The Elderly

Pursuing guardianship over an incapacitated adult

If you have a loved one who has suddenly become too ill to make decisions for him- or herself, you may need to seek guardianship powers to make decisions for him or her. New York law allows for children and other close family members of incapacitated persons to apply for guardianship to ensure that their loved one is appropriately cared for.

Imagine for example that your father has worked hard to care for everyone in your family his entire life. However, he just turned 90 and after suffering a stroke, his once-lucid mind is no longer able to think clearly. Maybe he's also exhibiting symptoms of dementia and he's getting lost on walks around the neighborhood.

Ever since your mother passed away, your dad has been on his own, but he can't take care of himself anymore. It may be time to seek guardianship.

New York guardianship laws

In New York, a case to pursue guardianship over the financial affairs and property of an incapacitated adult falls under the jurisdiction of Article 81 of the Mental Hygiene Law. Under Article 81, an incapacitated person (AIP) is a person who requires help caring for themselves and their finances on a day-to-day basis.

Those seeking guardianship will file their cases with the County Court or the Supreme Court.

When you pursue guardianship over a parent's affairs, the guardianship that the court awards you under Article 81 will specify what decisions you can make and what decisions the incapacitated person can make, if he or she still capable of making decisions.

The process of your guardianship case

During the process of your guardianship case, a judge will assign a court evaluator to your case. This person will function as the court's eyes and ears. He or she will meet with your incapacitated relative to ascertain with certitude whether a guardianship is indeed necessary -- and what kinds of powers the court will provide the guardian.

The court will also carry out a hearing in which to make your case. The more you know going into your guardianship hearing, the better capable you will be at arguing your case successfully.

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