GUARDIANSHIPS
Guardianship Protection for Your Loved Ones
A guardianship proceeding is usually commenced if you, a loved one, or friend can no longer make decisions and is in need of assistance with their personal and/or financial affairs and is incapable of attending to such needs on their own. A guardianship proceeding may be avoided if a client prepares a Power of Attorney and Health Care Proxy. Unfortunately, however, many people never attend to the preparation of these documents. It is also not uncommon for clients to have these documents prepared by a non-elder law attorney, which may result in inferior documents that could eventually necessitate the commencement of a guardianship proceeding.
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​If your loved one is suffering from a physical or mental challenge such as Alzheimer’s Disease, dementia, Multiple Sclerosis, Lou Gehrig’s Disease (ALS), or anything else that limits their functional capabilities, they may not be able to make the correct
or appropriate financial, property or health care decisions. With these types of situations, your best alternative may be to seek the appointment of a Guardian. Our attorneys are very experienced in matters of guardianships and powers of attorney, and we can help you develop or begin a guardianship proceeding for your loved one that is designed to protect the person and any personal or financial assets.
Guardianships for Adults and Children
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There are two types of guardianship proceedings in New York State: guardianships for adult persons pursuant to Article 81 of the Mental Hygiene Law and guardianships for persons who have developmental disabilities pursuant to Article 17-A of the Surrogate’s Court Procedures Act.
Article 81 Guardianship
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A guardian is usually appointed pursuant to Article 81 of the Mental Hygiene Law for persons over the age of 18 years of age. For this to occur, the Court must determine:
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The appointment is necessary to provide for the personal and/or financial needs of that person, and
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The person agrees to the appointment, unless that person is incapacitated. The determination of incapacity must be based on clear and convincing evidence and must consist of a determination that a person is likely to suffer harm because the person is unable to provide for personal needs and/or property management.
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If there is no Power of Attorney -- or a deficient Power of Attorney -- an Article 81 guardianship will likely become necessary where assets need to be transferred in order to qualify an individual for Medicaid or where other planning is appropriate.
Article 17-A Guardianship
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A guardian is usually appointed pursuant to Article 17-A of the Surrogate’s Court Procedures Act for persons who are developmentally disabled. A developmentally disabled person is a person who has been certified as having an impaired ability to understand and appreciate the nature and consequences of decisions which result in such person being incapable of managing themselves and/or their affairs by reason of developmental disability.