There are a variety of reasons someone in New York would pursue guardianship of an adult. Some children have disabilities from birth that prevent them from fully caring for themselves as adults while other adults may no longer have the mental capacity to make important decisions or take care of themselves. Whatever the reason, the New York court system has the authority to appoint a guardian over a person and/or their property if they are adjudicated to be incapacitated.
Pursuant to New York Mental Hygiene Law Article 81, upon a Petition the court system can evaluate a person’s competence – and their ability to take care of their own affirms. As part of this process – after the court is asked to intervene – the court appoints a court evaluator to assess the individual. The evaluator makes a recommendation to appoint a guardian or not based on their investigation of the individual in question. In addition, the evaluator makes recommendations on what the guardian can do such as make property decisions but not medical. The court will also appoint an attorney to protect the rights of the person alleged to be incapacitated, who advises the evaluator; the person commenced the proceeding; and the court what the wishes of the individual alleged to be incapacitated desires.
Before the judge makes a decision, the potential guardian – and other parties who are interested in the mater, including the court appointed attorney and evaluator – attend a hearing. This hearing can be either a non-contested, or a heavily litigated process, depending on those involved. For the best results, it is recommended that the potential guardian retain an experienced attorney to guide them through the process.
According to New York Mental Hygiene Law, anyone over the age of 18 can apply to be the guardian of another person. The guardian applicant needs a clean background with no criminal record. The judge looks at the ward or person who may need guardianship to determine whether or not they are capable of making decisions based on their communicative or cognitive capacity.
When granted guardianship, a person may only have power over certain aspects. The court may grant the guardian power only over legal proceedings, their person or their property. Alternatively, the court may grant guardianship for both property and person to help the ward with the majority of their decisions.
Given their nature, almost all guardianship matters are complex as they involve taking away an individual’s ability to act on their own, and appointing another to act in their place.
if you know someone in need of a guardian, or know someone over whom another is seeking a guardianship, contact Bashian P.C.