Caring for a loved one as they get older can be difficult. When that loved one needs help with paying bills and other tasks, a legal guardian may be the answer to make sure they get help if they do not have advance directives and have lost the ability to sign advance directives. A guardian can both advocate for the person and oversee their affairs so that they are cared for.
A legal guardian is someone who steps up to assist a person who is partly or completely incapacitated. The affected person may or may not understand that they need help and are unable to care for themselves, including handling their own decisions and affairs. This can include bill paying, personal and medical care decision-making, and even decisions regarding living arrangements. Some individuals may have the ability to handle some of their everyday affairs, and some simply can’t care for themselves anymore.
There are two types of guardianships in New York:
A guardian handles the affairs of the incapacitated person, or IP, as needed. This can include family members or an independent guardian appointed by the court.
Anyone interested in protecting an incapacitated person (IP) can become a guardian, including family members, if they qualify. A person with bad credit, a felony conviction, a history of domestic violence, or who can’t be bonded, will not qualify to serve as guardian. If someone needs a guardian but no family member is qualified, the court will appoint someone who may be with a social service agency or a trained professional.
A person seeking to become an adult guardian has to follow a process:
Individuals who do not want or believe they need a guardian can challenge the guardianship petition, as can their family members. If a guardian is appointed and the IP or their family members believe the guardian is not acting in the IP’s best interest, the guardian can be removed. The guardianship will last until it is terminated by the court or upon the death of the IP.
This is different from the guardianship of a minor child or a child who has a developmental disability, which matter is handled in the Surrogate’s Court.
Much of what the guardian will do is based on the capacity of the IP and the powers awarded by the court. Once appointed, a guardian may be responsible for:
Guardians can assist someone who is unable to properly take care of themselves by making arrangements on the IP’s behalf for things like home health care, housecleaning, and other assistive services.
Additionally, a guardian can help an IP who is the target of physical, financial, or other types of elder abuse, including senior scams and financial elder abuse by filing restraining orders, criminal complaints, and civil lawsuits to recoup assets.
Starting a guardianship proceeding is a difficult decision and one that is undertaken when the individual faces harm if their care needs are not met. An elder law attorney experienced in guardianship matters can answer your questions and make the guardianship process easier for everyone involved.
Cona Elder Law’s experienced Long Island Elder Law attorneys and seasoned litigators will help you navigate the complex court process to protect your loved one in a guardianship proceeding. We are strong advocates for our clients while we compassionately guide you through the guardianship process in all court jurisdictions throughout New York State. Contact us today for an initial consultation.
Cona Elder Law is a full service law firm based in Melville, LI. Our firm concentrates in the areas of elder law, estate planning, estate administration and litigation, special needs planning and health care facility representation. We are proud to have been recognized for our innovative strategies, creative techniques and unparalleled negotiating skills unendingly driven toward our paramount objective - satisfying the needs of our clients.
Jennifer Cona and Dylan Stevens Featured in New York Law Journal | Law.com
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