GUARDIANSHIPS

New York GUARDIANSHIP attorneys

In New York State, as in most states, the law presumes that an adult eighteen years of age or older is capable of handling his or her own affairs. When a person can no longer make safe decisions regarding their personal affairs or property or has become susceptible to undue influence or fraud, a guardian may be appointed by the Court to manage their affairs and make necessary decisions.

At Cona Elder Law, we understand the tremendous emotional burden families endure when faced with the prospect of an incapacitated loved one. Our Long Island elder law attorneys will help you navigate the complex legal procedure to have a guardian appointed so that you may properly care for your loved one.

What is a Guardianship?

A Guardianship is a powerful legal tool designed to help families protect a loved one who has become incapacitated.  If a loved one cannot make financial or health care decisions for themselves and has failed to appoint a person to handle such matters on their behalf by executing a Power of Attorney or Health Care Proxy, they may require the appointment of a Guardian.

What are Contested Guardianships?

In some cases, a Guardianship proceeding becomes contested and litigation may ensue, often because loved ones disagree about the care and needs of their aging family member, assets may have allegedly been misused or misappropriated, or the aging person themselves disputes the need for the appointment of a Guardian.

Contested Guardianships are often hard-fought, emotionally trying, time consuming and costly. A guardianship is a complex court proceeding but when it is contested, the Court adheres to a strict interpretation of the rules of evidence. This means that when you are involved in a contested Guardianship proceeding, you don’t need just an Elder Law attorney, you need an experienced Elder Law litigator who can be your zealous advocate in an adversarial courtroom such as the experienced attorneys at Cona Elder Law. At any given time, we are litigating over 1,000 active civil lawsuits, many of which are contested guardianship proceedings.

When is a Guardianship Proceeding Contested in New York?

A Guardianship proceeding in New York is contested when:

1. The individual disputes that they need a Guardian:

By way of example, the individual can have a diagnosis of dementia but still be capable of executing a Health Care Proxy and Power of Attorney. However, even if the individual has the capacity to execute a Health Care Proxy and Power of Attorney but still requires additional support managing their healthcare and/or finances, if they either refuse to appoint a Health Care Proxy and/or Power of Attorney or if they wish to appoint a person who is clearly unsuitable to serve in such a role, the guardianship matter would be litigated. 

2. The previously appointed Health Care agent is not adequately providing for personal needs and will not voluntarily resign

Even if the individual appointed a Health Care agent prior to their incapacity, if the agent is shirking their obligations but refuses to resign, a Guardianship proceeding must be brought to have them removed as health care agent and a Personal Needs Guardian appointed.

3. The previously appointed Power of Attorney is not responsibly managing assets or has stolen assets and will not voluntarily resign

Like the Health Care Proxy example above, even if the individual appointed a Power of Attorney agent prior to their incapacity, if the appointed financial agent is derelict in their duties or misusing or misappropriating the individual’s assets, a Guardianship proceeding must be brought to have them removed as the financial agent and a Property Management Guardian appointed. In many cases, the financial agent will fight the revocation of the Power of Attorney as they know they will likely be audited, forced to repay the misused or misappropriated funds or in severe circumstances, face criminal charges.

4. There is a disagreement as to who should be the Guardian

Even if it’s clear that the individual is incapacitated and requires the appointment of a Guardian, a dispute can arise as to who that Guardian should be. Under these circumstances the Court will look at the relationship between the person seeking Guardianship (the Petitioner) and the individual, the family circumstances and dynamics, the best interests of the incapacitated individual, and the suitability of the Petitioner to serve in a fiduciary capacity (ex. criminal record, recent history of bankruptcy filings, outstanding civil judgments, etc.).