Elder Planning Isn't Just For The Elderly

What are the criteria for incapacitation?

On Behalf of | Nov 10, 2022 | Blog, Guardianships

At some point, you may need to consider guardianship for an adult in your life. Many people have to make this consideration for their parents as they age.

But you cannot simply ask the court to give you control over another adult. You must prove that person is incapacitated.

Article 81 guardian

In New York, an Article 81 guardian is when a person wants guardianship over another adult who is incapacitated. It requires proving two specific points to the judge.

Care

You must show the person is unable to take care of his or her needs. This might be showing the person is not keeping up with hygiene or is having severe financial issues because he or she is not in the mental state to be able to handle these matters. You need to prove the person cannot do these things and it is detrimental. Simply showing a person is refusing to do something may not be enough, especially if that person is still capable of doing it.

Harm

The second point is important because it requires more than showing a person is just choosing not to take care of him or herself. You also need to show his or her inability to do self-care is causing harm. This can be the turning point in your case because someone harming themselves will show there is something going on that requires someone else to step in.

The court takes guardianships very seriously because they essentially strip an adult of his or her independence and freedom. No judge wants to do this unless it is the only way to keep a person safe.

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