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Elder Planning Isn't Just For The Elderly

Understanding guardianships for an incapacitated adult

On Behalf of | Jul 22, 2020 | Guardianships

It is never easy to face the litany of challenges that arise if a loved one becomes incapacitated. For New Yorkers who are confronted by this issue, it may have occurred suddenly or been part of an incremental decline due to a medical condition or illness. Regardless, to care for the incapacitated adult, a guardianship might be needed. The law for taking responsibility of that person can be confusing, so it may be critical to have legal assistance from the beginning.

For someone who is seeking guardianship, it is imperative to understand the basics. The specific law in New York concerning guardianships is Article 81. The person who is incapacitated may need some assistance to handle finances and property or will no longer be able to take care of him or herself at all. The needs could fall somewhere in between. The court will not simply decide to give a person the right to make decisions in the incapacitated person’s stead. There are rules that must be followed before granting that power.

The judge in the case will name a court evaluator. That evaluator must meet the incapacitated person and analyze the case to decide if there should be a guardian. It must also be determined what the scope of the guardian’s rights will be. The guardian must know there are certain duties that must be followed. The court will decide what the powers are and when they are authorized. There must be care and diligence on the part of the guardian in acting on the incapacitated person’s behalf. The priority is the incapacitated person’s needs. There must be at least four visits by the guardian a year, but there can be more depending on the orders of the court.

In short, the guardian is responsible to care for a person, and Article 81 dictates that level of care. Depending on the incapacity, what the person is capable of understanding, and the amount of assistance needed, the guardian may have parameters to adhere to under the terms of the court decision. In the interest of the incapacitated person and the prospective guardian, it is beneficial to have legal help. Consulting with a firm experienced in guardianships and with an innate understanding of Article 81 may be useful.