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How is guardianship established for an incapacitated adult?

The general effects of age and time, suffering some types of injuries or developing certain medical conditions may result in physical or mental incapacity for adults. If they have not already legally named a representative to act on their behalf, family members charged with their care may see fit to pursue the authority to handle their affairs. Therefore, it is important for people to understand how guardianship is established for incapacitated adults in New York.

According to the New York Unified Court System, guardianship is the legal appointment by the court of an agent who is charged with making decisions on behalf of another person who cannot make choices for himself or herself. Depending on the circumstances, a guardianship may be granted for a person, his or her property, or both. A guardian of the person is responsible for life-related choices, such as those relating to the ward's welfare, health care or education.  A guardian of the property, however, only has authority over the management of the ward's money, savings and investments.

According to the New York City Department for the Aging, the appointment of a guardian for an incapacitated adult is initiated by filing a petition with the court. The petition should detail the needs; self-care, financial or both, of the potential ward that are not currently being addressed.

After a petition for guardianship is filed, a hearing is held in which a judge will determine whether to appoint another person to make decisions on behalf of the potential ward. The person over whom guardianship is being sought must be notified about the hearing, and he or she has the option to participate as much as he or she wants and is able. The judge will review the information provided by the petitioner, which may include medical records or other statements regarding the health care and well-being of the potential ward, as well as any testimony that is given, in order to determine the incapacity level and needs of the potential ward.

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