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Elder Planning Isn't Just For The Elderly

What to do when your parents can no longer care for themselves

Adults living in the “sandwich generation” may find themselves in a position where they are caring for young children while also caring for their ailing, older parents or grandparents. If a person’s parents or grandparents reach the point where they can no longer take care of their financial needs, manage their own property or care for themselves, then it is possible that they may be considered “an incapacitated person” — also known as a “ward” — who needs a court-appointed guardian.

Guardianship cases fall under Article 81 of New York Mental Hygiene Law. First, a judge will assign a court evaluator to the case. This person will meet with the potentially incapacitated person to perform an investigation. Then, the court evaluator will issue a report stating whether guardianship is appropriate, and if so, what decisions will be in the hands of the guardian and what decisions will be made by the ward.

A person can apply to be a guardian of a loved one if they are at least 18 years old and a legal resident of the U.S. or a U.S. citizen. If a person has a criminal record, they cannot be appointed as a guardian. Ultimately, the judge in a guardianship case will have the power to issue the final decision of who the ward’s guardian will be.

There are several types of guardianships that may be awarded, depending on the circumstances. Guardianship of the person allows the guardian to make key life decisions, such as medical and welfare decisions, on behalf of the ward. Guardianship of the property allows the guardian to make financial decisions per the directions of the judge on behalf of the ward. It is possible for two separate persons to be appointed guardian of the person and guardian of the property respectively, or it may be decided that one person be both guardian of the person and property.

Sometimes, if your parent or grandparent can no longer take care of their needs, it is necessary to assign a court-appointed guardian to their care. This post does not contain legal advice on the topic of guardianship, so those who are wondering what steps to take when a loved one becomes incapacitated will want to seek the assistance of a professional familiar with guardianship law in New York.