Guardianship Protection for Your Family and 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 can be avoided if a client prepares a New York State Power of Attorney and Statutory Gifts Rider. However, many people never attend to the preparation of these documents and 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 development of a guardianship proceeding.
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 family or loved one that is designed to protect the person and any personal or financial assets.
Guardianships for Adults and Children
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
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:
The appointment is necessary to provide for the personal and/or financial needs of that person
The person agrees to the appointment, unless that person is incapacitated. The determination of incapacity shall be based on clear and convincing evidence and shall 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.
An Article 81 guardian is a necessity if there is no New York State Power of Attorney and Statutory Gifts Rider in situations where planning must be implemented to qualify an individual for Medicaid and assets need to be transferred.
Article 17-A Guardianship
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.
Our firm regularly commences Article 81 and Article 17-A guardianships in Westchester County, Rockland County, Putnam County, Dutchess County, Orange County, New York City (Manhattan, Queens, Brooklyn, Staten Island, Bronx), Nassau County, and Suffolk County. Call us at 914-925-1010 (Rye Office) or 914-245-2440 (Yorktown Heights Office) to schedule a consultation or complete our online form.
Articles and Blog Posts
Click here to read our articles and blog posts concerning Guardianships.
“I retained Salvatore Di Costanzo and Jennifer Bienenstock to handle what turned out to be a pair of complicated and problematic Medicaid applications for two elderly relatives. I have worked in the state court system for several years and deal with attorneys on a daily basis. I can state without reservation that the level of skill, attention, and thoughtfulness that Mr. Di Costanzo and Ms. Bienenstock bring to their practice is second to none.”
– Kevin E.–Guardianship Tesimonials