We understand the tremendous emotional burden families endure when faced with the prospects of an incapacitated relative. We will help you navigate the complex legal procedure to have a guardian appointed so that you may properly care for your loved one.
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 or communicate safe or sound decisions (regarding personal affairs and/or property) or has become susceptible to fraud or undue influence, a guardian may be appointed by the court to manage the affairs and make necessary decisions.
A guardian may be appointed to serve as a substitute decision maker if a person is disabled because of mental deterioration, physical incapacity, mental illness or developmental disability. The court may thereafter refer to this person as the "ward" or the "incapacitated person."
Guardianship by its nature affects personal rights since the guardian is empowered to make decisions on behalf of his or her ward. A good guardian will take into account the wishes and desires of the ward when making decisions about residence, medical treatments, and end-of life decisions, while at the same time maintaining a duty to advise the ward of his or her rights and to attempt to maximize the ward's self reliance and independence. The courts will remove only those rights that the incapacitated person or ward is incapable of handling, because a person under guardianship has the right to the least restrictive guardianship suitable to his or her needs and conditions.
There are different types of guardians. You may be a personal guardian, a property guardian or both.
A personal guardian tends to the personal care of the ward, while a property guardian is the guardian of a person's real estate, personal property, money and the like. One person can be guardian of both or separate guardians may be appointed.