the new york guardianship process

THE NEW YORK GUARDIANSHIP

PROCESS

If You Have a Parent, Grandparent, Or Other Older Loved One Who Is Showing Signs that He Or She Cannot Function Safely Alone It May Be Time to

Consider Filing For Guardianship

SAUL KOBRICK NEW YORK ESTATE PLANNING ATTORNEY

SERVING NASSAU, SUFFOLK, AND WESTCHESTER COUNTIES

The New York Guardianship Process www.kobricklaw.com 2

As the life expectancy of the average American continues to increase the

odds that you will one day need to care for an elderly relative also increase.

Though advances in medicine and science coupled with an overall better

standard of living are allowing us to live longer, no one has found a way to

halt the natural aging process entirely. Therefore, the longer we live the

better the odds of needing assistance for everything from daily tasks to

financial management. If you have a parent, grandparent, or other older

loved one who is showing signs that he or she cannot function safely alone

it may be time to consider filing for guardianship. If you live in New York,

the following provides an overview of the guardianship process.

FACTS AND FIGURES

Deciding to pursue guardianship is often a difficult decision to make.

Frequently, it feels as

though you are taking away

your loved ones

independence. Failing to

step in, however, could lead

to serious physical injury or

could leave your loved one

open to becoming the victim

of those who prey on the

elderly. The longer your loved one lives, the greater the chance that he or

she will suffer from some form of age-related dementia. Consider the

following facts and figures:

Alzheimers is the 6th leading cause of death in the United States


One in three seniors will die with Alzheimers or another age-related

dementia disease

Five million people currently suffer from Alzheimers

Someone develops Alzheimers every 68 seconds in the U.S. By the year

2050 that is expected to increase to every 33 seconds.

WHAT IS GUARDIANSHIP?

When an individual becomes unable to safely care for himself/herself it

becomes necessary for someone else to step in and take over that care.

While you may already be doing that on a practical level, guardianship

provides the legal authority for you to do so. As a guardian you may have

the legal authority to make decisions for the ward, or person in need of

protection, and/or to manage the finances of the ward.

To become a guardian you must first petition a court. The court must then

be convinced that a guardian is needed and that you would be an

appropriate choice.

WHEN MAY A COURT

APPOINT A GUARDIAN?

In New York, Article 81 of the

Mental Hygiene Law governs

guardianship. The law is very

clear with regard to when a

guardian may be appointed.

Section 81.02 of Article 81 states,


in pertinent part:

The court may appoint a guardian for a person if the court

determines (1) that the appointment is necessary to provide for the

personal needs or to manage the property and financial affairs of the

person, or both, and (2) that the person agrees to the appointment or

that the person is incapacitated. A determination of incapacity

requires clear and convincing evidence that a person is likely to suffer

harm because:

1. the person is unable to provide for personal needs or unable

to manage property and financial affairs; and

2. the person cannot adequately understand and appreciate the

nature and consequences ofsuch inability.

PETITIONING TO BECOME A GUARDIAN

If you believe that a family member or loved one is in need of a guardian

the first step is to petition the appropriate court. A Petition for

Guardianship is filed with the New York Supreme Court. In the petition you

must explain why you believe that the Alleged Incapacitated Person, or

AIP, needs a guardian. Both the AIP and a number of other people are

entitled to be notified of the filing of the petition and to receive a copy of

the petition. Any of these people, including the AIP, can object to the

appointment of a guardian.


THE COURT EVALUATOR

After the petition is filed with the court, the judge will appoint a court

evaluator. The court evaluator is typically an attorney who has received

specialized training in the evaluation of individuals who are alleged to be

incapacitated. The evaluator will meet with the AIP and likely review his or

her medical records. The evaluator will then file a report with the court

either recommending the appointment of a guardian or indicating that one

is not needed. If the AIP is represented by an attorney the court may forego

the appointment of an evaluator.

THE HEARING

At the time the court appoints the evaluator the judge will also likely set a

hearing date. At the hearing, the judge will listen to testimony and review

evidence admitted by both sides if someone opposes the appointment of a

guardian. The AIP, of course, has the right to simply consent to the

appointment of a guardian; however, if the AIP does not consent, or is

unable to consent, the judge will make the determination based on the

testimony and evidence presented to the court. Section 81.02 governs a

judges responsibility when evaluating a potential IAP and states:

The law requires the court to give primary consideration to the

functional level and functional limitations of the person. This

consideration includes an assessment of the person's:

1. management of the activities of daily living, as defined in

Section 81.03(h) of this article;


2. understanding and appreciation of the nature and

consequences of any inability to manage the activities of

daily living;

3. preferences, wishes, and values with regard to managing the

activities of daily living;

4. the nature and extent of the person's property and financial

affairs and his or her ability tomanage them.

LEAST RESTRICTIVE MEANS DOCTRINE

In New York, the law requires a judge to use the least restrictive mean

necessary to protect an AIP. In practice what this means is that if there is an

alternative to guardianship the court will likely use that alternative. It also

means that if the court does decide a guardian is needed that the court will

limit the guardians powers to only those absolutely necessary to protect the

AIP.

GUARDIAN POWERS AND AUTHORITY

If the court decides that a guardian is needed, and that you are an

appropriate guardian, the court

will then decide what authority

and power you will have as

guardian. An individual can be a

guardian of the person or

guardian of the estate. A

guardian of the person makes

daily decisions for the ward such


as where he or she will live or what doctor the ward will treat with for

medical care. As guardian of the estate you would have authority and

control over the finances and assets of the ward. The court could appoint

you as either, or both, types of guardian. Furthermore, the court could

tailor the guardianship order to only give the guardian very specific

authority if the court feels that the ward is capable of handling some tasks

and making some decisions but not others.

If you are concerned about an elderly loved one and would like to explore

guardianship as an option, consult with an experienced New York estate

planning attorney as soon as possible.

Alzheimers.org, Latest Facts and Figures

Queens Legal Services, Guardianship Proceedings in New York

The New York State Law Revision Committee, Guide to Adult Guardianship


About the Author

Saul Kobrick

Saul Kobrick is an attorney licensed to practice law in the State of New York and the owner and founder of The Law Offices of Saul Kobrick, P.C. Mr. Kobrick is licensed to practice law in all courts of New York State, as well as in the Federal District Courts for the Southern and Eastern Districts of New York. He is a member of the New York State Bar Association as well as a member of the American Academy Estate Planning Attorneys. Mr. Kobrick is also a member of the National Academy of Elder Law Attorneys.

Experience Prior to founding his Garden City Law Firm in 1992, Mr. Kobrick has for many years, practiced law both as a Sole Practitioner, and in partnership in New York City. His work has always included business law, wills, trusts and estate planning. A Suffolk County Branch of the firm was added in January of 1998, and a Westchester County Branch of the firm was added in August of 1999 providing quality Estate Planning and Elder Law services to residents of Nassau, Westchester and Suffolk Counties. Law Offices of Saul Kobrick, PC www.kobricklaw.com (800) 295- 1917 GARDEN CITY 1305 Franklin Avenue Suite 170 Garden City, NY 11530 Phone: (516) 248-9500 Fax: (516) 248-7606 HAUPPAUGE 235 Brooksite Drive Hauppauge, NY 11788 Phone: (631) 941-3400 Fax: (516) 248-7606 HARRISON 600 Mamaroneck Avenue 4th Floor Harrison, NY 10528 Phone: (914) 701-0777 Fax: (516) 248-7606

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