THE NEW YORK

GUARDIANSHIP
PROCESS

If You Have a Parent, Grandparent, Or Other Older
Loved One Who Is Showing Signs that He Or She
Cannot Function Safely Alone It May Be Time to
Consider Filing For Guardianship
SAUL KOBRICK
NEW YORK ESTATE PLANNING ATTORNEY
SERVING NASSAU, SUFFOLK, AND WESTCHESTER COUNTIES


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As the life expectancy of the average American continues to increase the
odds that you will one day need to care for an elderly relative also increase.
Though advances in medicine and science coupled with an overall better
standard of living are allowing us to live longer, no one has found a way to
halt the natural aging process entirely. Therefore, the longer we live the
better the odds of needing assistance for everything from daily tasks to
financial management. If you have a parent, grandparent, or other older
loved one who is showing signs that he or she cannot function safely alone
it may be time to consider filing for guardianship. If you live in New York,
the following provides an overview of the guardianship process.
FACTS AND FIGURES
Deciding to pursue guardianship is often a difficult decision to make.
Frequently, it feels as
though you are taking away
your loved ones
independence. Failing to
step in, however, could lead
to serious physical injury or
could leave your loved one
open to becoming the victim
of those who prey on the
elderly. The longer your loved one lives, the greater the chance that he or
she will suffer from some form of age-related dementia. Consider the
following facts and figures:
Alzheimers is the 6
th
leading cause of death in the United States


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One in three seniors will die with Alzheimers or another age-related
dementia disease
Five million people currently suffer from Alzheimers
Someone develops Alzheimers every 68 seconds in the U.S. By the year
2050 that is expected to increase to every 33 seconds.
WHAT IS GUARDIANSHIP?
When an individual becomes unable to safely care for himself/herself it
becomes necessary for someone else to step in and take over that care.
While you may already be doing that on a practical level, guardianship
provides the legal authority for you to do so. As a guardian you may have
the legal authority to make decisions for the ward, or person in need of
protection, and/or to manage the finances of the ward.
To become a guardian you must first petition a court. The court must then
be convinced that a guardian is needed and that you would be an
appropriate choice.
WHEN MAY A COURT
APPOINT A GUARDIAN?
In New York, Article 81 of the
Mental Hygiene Law governs
guardianship. The law is very
clear with regard to when a
guardian may be appointed.
Section 81.02 of Article 81 states,


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in pertinent part:
The court may appoint a guardian for a person if the court
determines (1) that the appointment is necessary to provide for the
personal needs or to manage the property and financial affairs of the
person, or both, and (2) that the person agrees to the appointment or
that the person is incapacitated. A determination of incapacity
requires clear and convincing evidence that a person is likely to suffer
harm because:
1. the person is unable to provide for personal needs or unable
to manage property and financial affairs; and
2. the person cannot adequately understand and appreciate the
nature and consequences ofsuch inability.

PETITIONING TO BECOME A GUARDIAN
If you believe that a family member or loved one is in need of a guardian
the first step is to petition the appropriate court. A Petition for
Guardianship is filed with the New York Supreme Court. In the petition you
must explain why you believe that the Alleged Incapacitated Person, or
AIP, needs a guardian. Both the AIP and a number of other people are
entitled to be notified of the filing of the petition and to receive a copy of
the petition. Any of these people, including the AIP, can object to the
appointment of a guardian.



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THE COURT EVALUATOR
After the petition is filed with the court, the judge will appoint a court
evaluator. The court evaluator is typically an attorney who has received
specialized training in the evaluation of individuals who are alleged to be
incapacitated. The evaluator will meet with the AIP and likely review his or
her medical records. The evaluator will then file a report with the court
either recommending the appointment of a guardian or indicating that one
is not needed. If the AIP is represented by an attorney the court may forego
the appointment of an evaluator.
THE HEARING
At the time the court appoints the evaluator the judge will also likely set a
hearing date. At the hearing, the judge will listen to testimony and review
evidence admitted by both sides if someone opposes the appointment of a
guardian. The AIP, of course, has the right to simply consent to the
appointment of a guardian; however, if the AIP does not consent, or is
unable to consent, the judge will make the determination based on the
testimony and evidence presented to the court. Section 81.02 governs a
judges responsibility when evaluating a potential IAP and states:

The law requires the court to give primary consideration to the
functional level and functional limitations of the person. This
consideration includes an assessment of the person's:
1. management of the activities of daily living, as defined in
Section 81.03(h) of this article;


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2. understanding and appreciation of the nature and
consequences of any inability to manage the activities of
daily living;
3. preferences, wishes, and values with regard to managing the
activities of daily living;
4. the nature and extent of the person's property and financial
affairs and his or her ability tomanage them.
LEAST RESTRICTIVE MEANS DOCTRINE
In New York, the law requires a judge to use the least restrictive mean
necessary to protect an AIP. In practice what this means is that if there is an
alternative to guardianship the court will likely use that alternative. It also
means that if the court does decide a guardian is needed that the court will
limit the guardians powers to only those absolutely necessary to protect the
AIP.
GUARDIAN POWERS AND AUTHORITY
If the court decides that a guardian is needed, and that you are an
appropriate guardian, the court
will then decide what authority
and power you will have as
guardian. An individual can be a
guardian of the person or
guardian of the estate. A
guardian of the person makes
daily decisions for the ward such


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as where he or she will live or what doctor the ward will treat with for
medical care. As guardian of the estate you would have authority and
control over the finances and assets of the ward. The court could appoint
you as either, or both, types of guardian. Furthermore, the court could
tailor the guardianship order to only give the guardian very specific
authority if the court feels that the ward is capable of handling some tasks
and making some decisions but not others.
If you are concerned about an elderly loved one and would like to explore
guardianship as an option, consult with an experienced New York estate
planning attorney as soon as possible.
Alzheimers.org, Latest Facts and Figures
Queens Legal Services, Guardianship Proceedings in New York
The New York State Law Revision Committee, Guide to Adult Guardianship




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About the Author
Saul Kobrick
Saul Kobrick is an attorney licensed to practice law in the State
of New York and the owner and founder of The Law Offices of
Saul Kobrick, P.C. Mr. Kobrick is licensed to practice law in all
courts of New York State, as well as in the Federal District
Courts for the Southern and Eastern Districts of New York. He
is a member of the New York State Bar Association as well as a
member of the American Academy Estate Planning Attorneys.
Mr. Kobrick is also a member of the National Academy of Elder
Law Attorneys.

Experience

Prior to founding his Garden City Law Firm in 1992, Mr. Kobrick has for many years,
practiced law both as a Sole Practitioner, and in partnership in New York City. His work
has always included business law, wills, trusts and estate planning. A Suffolk County
Branch of the firm was added in January of 1998, and a Westchester County Branch of
the firm was added in August of 1999 providing quality Estate Planning and Elder Law
services to residents of Nassau, Westchester and Suffolk Counties.

Law Offices of Saul Kobrick, PC
www.kobricklaw.com
(800) 295- 1917

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