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Elder Planning Isn't Just For The Elderly

Proving incapacity for guardianship purposes

Very few New Yorkers expect to be put in a position where they have to be responsible for the care of a loved one. Yet, quite often, an elderly loved one, or one who is simply incapacitated, becomes unable to care for him or herself. When this happens, it may be necessary for an individual to seek guardianship of their loved one. Doing so can instill an individual with certain legal rights that allow them to ensure that the guardian and his or her property is adequately protected.

While many elderly and incapacitated individuals agree to a guardianship, sometimes they don't. When this happens, the burden falls on the potential guardian to prove by clear and convincing evidence that the subject is in fact incapacitated. In New York, this means showing that the subject is likely to be harmed because he or she is unable manage his or her own person, property and financial matters. Additionally, it must be shown by clear and convincing evidence that the subject does not understand the negative implications of his or her inabilities.

To make a determination regarding incapacity, the court will consider a number of factors. Among these factors are how the individual manages his or her daily living, how he or she understands the effects of his or her inability to manage his person, property and finances and the nature of the property in question. A court will also consider any illnesses or disabilities suffered by the subject, as well as any medications that he or she may be taking and how that medication may affect his or her ability to manage his or her own affairs.

Establishing guardianship can be critically important to ensure that a loved one's physical and financial well-being is as fully protected as possible. However, the process of securing guardianship isn't always easy. To learn more about the process and how it may prove beneficial, New Yorkers can speak with an attorney who experienced in this area of the law.

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