Rochester Guardianship Lawyers

When is A Guardianship Necessary?

Guardianship proceeding are initiated  when an interested or concerned party believes that a person, because of his/her mental health, physical, and functional limitations, is unable to manage independently, and as a result, may be at risk of harm. While guardianship may be appropriate in such circumstances, it is possible that other, less intrusive methods can address the individual’s risks and services needed.

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Guardianship should be pursued as a last resort, where there are no available resources or adequate alternatives available to protect the individual. If resources exist, such as a power of attorney, trust  or health care proxy, the personal needs and property management of the individual may already be adequately provided for, making a guardianship unnecessary and an excessive intrusion upon the individual’s liberty interests.

 Who is the Guardian?

A New York Mental Hygiene Law Article 81 Guardian is a person appointed by the court to assist an incapacitated person  with personal needs and/or property management. The court may appoint a guardian for any incapacitated adult, including persons who are mentally retarded and developmentally disabled. The decision to appoint a guardian is based on a careful review of the person’s mental capacity and life circumstances.

The petitioner can be any of the following:

• The alleged incapacitated person (“AIP”),
• A person entitled to share in the estate of the AIP,
• An executor or administrator of an estate of which the AIP is or may be a beneficiary,
• A trustee of a trust of which the AIP is the grantor or a beneficiary,
• A person with whom the AIP lives,
• A person concerned with the welfare of the AIP, including a public agency, such as the department of social services in county in which the AIP lives and,
• The CEO of a facility in which the AIP is a patient or resident.

A guardianship proceeding is a legal action brought by the petitioner who believes that the AIP cannot take care of his/her/ own personal needs, e.g. healthcare, or cannot manage his/her property, e.g. pay bills. The petitioner believes that because of the AIP’s  inability, the court should appoint someone to have the powers to make decisions about personal needs and/or financial management on behalf of the AIP.

When an order to show cause and petition for guardianship is filed, a court evaluator will be appointed. The evaluator acts as an independent investigator who assists the court in its determination of the AIP’s capacity and needs. The court evaluator has the authority to:

• Retain an independent medical expert to assess the AIP;
• Apply to the court for permission to inspect the AIP’s medical records; and
• Conduct any other necessary investigations and make recommendations for other measures that the court may deem appropriate to serve the interests of the AIP.

The court evaluator or a temporary guardian can prevent the waste, misappropriation or loss of the AIP’s property pending the outcome of the guardianship hearing. This authority is crucial when the AIP  is a victim of financial exploitation or at risk of such abuse. For example, if the AIP has large amounts of cash in the house which could be stolen or misappropriated, the court evaluator has the authority to open a bank account and deposit the money.

The AIP must either agree to the appointment or the petitioner must prove by clear and convincing evidence, using specific factual allegations, that the AIP is incapacitated. The petitioner has the burden to show that the AIP is likely to suffer harm because he/she is unable to provide for their own personal needs and/or property management and that he/she cannot adequately understand and appreciate the nature and consequences of such inability.

A court may appoint a guardian if it determines that a guardian is necessary to provide for the AIP’s  personal needs, including food, clothing, shelter, health care, or safety, or to manage his/her property and financial affairs. The guardianship must be  the least restrictive form of intervention meeting the personal and property management needs of the AIP while, at the same time, ensuring the greatest degree of independence and self-determination.

The guardianship must be managed in accordance with the individual’s wishes, preferences and desires to the greatest extent safe and possible under the attending circumstances. A guardian should be granted only the powers necessary to accomplish what is needed. A guardianship can also be created for a limited duration of time and for a specific purpose.

A finding of incapacity is a functional analysis, Both the functional abilities and limitations of the individual are to be examined. A court must assess the AIP’s ability to manage his/her activities of daily living and whether there is an appreciation of the consequences of any inability to manage those activities. The assessment also considers the AIP’s personal, property and financial demands and whether the person suffers from any physical illness or mental disability.

A guardianship is appropriate for personal needs in order to protect a person who is no longer able to care for his/her own well-being. Such inabilities may stem from severe loss of cognitive abilities, such as dementia, Alzheimer’s or Huntington’s disease, or other restraints, both physical and mental. Indications of this may include an inability to administer medications, inability to ambulate, eating spoiled or uncooked food, or carelessness that resulted in dangerous situations, such as kitchen fires.

Guardianship may be appropriate for financial management where an AIP is unable to pay his/her bills, resulting in mounting debt or irrational expenditures. Often unchecked financial abuse, in the form of people stealing or commingling the AIP’s  funds, can itself be a sign that a guardianship is necessary.

Also, a guardianship may be necessary where the AIP is unable to maintain a livable home, especially when such circumstances may result in homelessness.

The powers of a guardian are separated into these two different areas: 1) property management and 2) personal needs. A guardian’s powers might be limited to just one of these categories, but often a guardian’s powers include both.

Property management may include, but is not limited to, the power to pay bills, authorize the release of confidential records, make gifts, enter into contracts, marshal assets, create trusts, pay for funeral expenses and apply for government and private benefits.

Personal needs may include, but are not limited to, the power to manage medical treatment, to determine  living accommodations, to make decisions about social activities of the person, to determine travel if appropriate and  to apply for government and private benefits.

A guardian must personally visit the person at least four (4) times a year and  send reports to the court. These reports must describe how the person is doing. The first report is due 90 days after the guardian officially qualifies as guardian. The next reports are due once every year in May. A guardian must always make decisions for the incapacitated person with his/her best interests in mind.

Download the NY State Bar Association’s LEGALEase Guidelines for Guardians

Where there are signs of financial abuse, guardianship provides both immediate and long-term solutions:

• The court may appoint a temporary guardian at any time prior to the appointment of a guardian if there is evidence that an AIP is in danger presently or in the reasonably foreseeable future.
• Prior to appointing a guardian, the court may issue an injunction to stop someone from transferring or disposing of the AIP’s property, or acting in a manner that threatens to endanger the AIP. If abuse is suspected, bank accounts can be frozen and existing powers of attorney suspended.
• As mentioned above, the court evaluator can take steps to preserve the AIP’s assets and property.
• If an agent acting under a power of attorney has allegedly engaged in financial abuse, the court has the authority to demand an accounting covering the entire period of agency and to vacate the power of attorney if the court determines that the agent violated his/her fiduciary duty.
• Once the court appoints a guardian, that person can commence a Summary Discovery Turnover Proceeding in which the guardian can compel testimony by any individual whom the guardian believes is holding assets belonging  to the incapacitated person.  The guardian can also subpoena records  to find evidence of financial exploitation. If financial abuse is discovered, the guardian can obtain a court order compelling the abuser to relinquish the property, such as real estate  to the guardian.

•  Health Care Proxy
•  Will Information Worksheet
•  Executor’s Legal Survival Guide
•  Medicaid Guide 2024
•  Healthcare Proxy / Living Will
•  NY Elder Abuse Resources
•  17 Benefits for Older New Yorkers