How guardians are appointed to help those in need
If you have a loved one that can no longer handle their personal or financial affairs, what can you do to help them? Hopefully, they have engaged in proper estate planning and have a power of attorney and health care proxy. With a power of attorney in place, the power of attorney agent can help with their financial affairs. With a health care proxy in place, the health care proxy agent can assist with health care decision making.
If there is no power of attorney or health care proxy in place, then what do you do? If the individual is still mentally competent, there is still time to have them execute a power of attorney and health care proxy. If the individual is no longer mentally competent, then you have to bring a petition to be appointed as their guardian.
Under Article 81 of the New York State Mental Hygiene Law, a guardianship petition may be brought if a person can no longer manage their personal or property affairs and they don’t understand their limitations. The person’s limitations must also present a danger to their welfare.
In a typical case, an incapacitated elderly person may not understand they can no longer cook safely because they can’t remember to shut off their gas stove, or they might be at a risk of home foreclosure because they can no longer keep track of their mortgage payments. In guardianship parlance, the person who is the subject of the guardianship petition is known as the allegedly incapacitated person (AIP).
In such cases, a guardianship petition may be brought seeking the appointment of a guardian of the person and/or property of the AIP.
Once the petition is before the court, a judge will appoint a Court Evaluator and potentially an attorney to represent the AIP. The Court Evaluator is usually an attorney who acts as a neutral third party investigating the facts and reporting back to the court. The Court Evaluator will report whether they think the AIP needs a guardian, and if so, who may be best equipped to take on that responsibility. The attorney for the AIP will similarly investigate the case, but it is their job to advocate solely on behalf of the AIP.
Guardianship proceedings can become contested in the event the AIP doesn’t think they need a guardian or if a third party objects to the appointment of the guardianship petitioner. Whether the proceeding is contested or not, the court must hold a hearing to determine if a guardian is necessary and who may be the best choice for the position.
In the simplest guardianship proceedings, a loving son or daughter seeks to be appointed as guardian for their mom or dad, the parent consents, and the court makes the appointment. On the other side of the spectrum, guardianship proceedings may involve accusations of mismanagement by prior power of attorney agents and contests between family members as to who is best suited to act as a guardian. If a petitioner is successful and the AIP has funds, the court will usually direct that the cost of the proceeding be paid from the AIP’s resources.
After the guardian is appointed by the court, they will receive a commission from the County Clerk, which acts as their proof of authority. Within 90 days of their commission, the guardian must file an initial report with the Examiner of Guardianship Reports. Every year thereafter, the guardian must file an annual report of their activities during the prior year. These reporting requirements help ensure the guardian performs their responsibilities appropriately.
Bringing a petition to be appointed as someone’s guardian should be done with the assistance of an attorney experienced in guardianship law. Having capable counsel on board will ensure your loved one gets the critical help they need.
Matthew J. Dorsey, Esq. is of Counsel to O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY. Over his eighteen years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at (518)584-5205, This email address is being protected from spambots. You need JavaScript enabled to view it., and www.oalaw.com.
