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Elder Planning Isn't Just For The Elderly

The two major types of guardianship explained

If you are just beginning to think about long-term planning for your loved ones, guardianship may be a new concept for you.

A guardianship allows caregivers to proactively make decisions for those in their care. In New York, the law provides guardianships for those with developmental disabilities and for those who are no longer able to advocate for themselves (diminished capacity).

Developmental disabilities (Article 17-A)

This aspect of guardianship gives significant power to the caregiver. Here, the caregiver can make binding financial decisions and permanent health care arrangements. When petitioning the court, the caregiver must provide certifications from a physician of the loved one’s diagnosis. Caregivers must also provide comprehensive documentation of the loved one’s affairs, including their property, investments and debt.

Diminished capacity (Article 81)

Here, the loved one under the guardianship retains more autonomy and self-determination. Article 81 presumes that those over the age of 18 have complete functionality in all parts of life until proven otherwise. A caregiver cannot get broad power to take over another person’s affairs. Examples of limited guardianship include medical care and power of attorney.

Who may need a guardianship?

According to the American Bar Association, approximately 60 percent of those in New York with guardianships are older adults with low incomes. Most are women and have incomes of less than $20,000. 85 percent of cases involved people who were no longer able to care for their homes or property. Entrusting a legal advocate with your affairs can help your loved ones as they age.

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