Guardianships - Genser Cona Elder Law

Guardianships

We understand the tremendous emotional burden families endure when faced with the prospect of an incapacitated loved one. We’ll help you navigate the complex legal procedure to have a guardian appointed so that you may properly care for your loved one.

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.

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.

What is New York’s Mental Hygiene Law?

Pursuant to Article 81 of the Mental Hygiene Law, the Court must find that the guardianship is necessary to provide for the personal needs and property management of an incapacitated person.  The individual’s functional level and functional limits are considered, including:

  • The individual’s actual needs
  • Their ability to perform the activities of daily living
  • The individual’s mental abilities
  • The individual’s physical illnesses

What Powers Will a Guardian Have?

A Guardian may be appointed to serve as a substitute decision maker if a person is incapacitated due to certain functional limitations that affect their ability to tend to their personal needs or make prudent decisions with respect to their property management.  When a Court determines that a person requires a Guardian, the Court will tailor the Guardian’s powers to meet the needs of the incapacitated person while not being overly restrictive.  Personal needs powers include decisions regarding medical care, medical treatments, hiring care providers such as home health aides or other services, and decisions regarding where the incapacitated person should live, including placement in a nursing home.   

A Guardian of the Property may be granted authority to marshal an incapacitated person’s assets, pay their bills, create Trusts, sell real estate and handle retirement assets.  The Guardian can also engage in asset transfers and Medicaid planning with the Court’s approval. Effective Medicaid planning can protect the incapacitated person’s assets by making him or her eligible for government benefits.

Who Can Be a Guardian?

The Court will determine the best person to be the Guardian. The same person can be Guardian for both Personal Needs and Property Management or separate Guardians can be appointed.  Co-Guardians can also be appointed. Every situation is different and the Court’s job is to hear all sides and reach the right result for your loved one.

Contact Genser Cona Elder Law for Guardianships in New York

At Genser Cona Elder Law, our experienced Elder Law attorneys will help you navigate the complex court process to protect your loved one.  We have compassionately guided many clients through the guardianship process in all court jurisdictions throughout New York State and we’ll do the same for you.