Elder care attorney Albert Goodwin is committed to helping seniors meet the challenges of getting older. As a senior, your income may have declined when you stopped working, but your medical and living expenses are soaring. You are gradually becoming more vulnerable and more dependent on others. Depending on the state of your health, you may need a home health aide or to be in a living facility. You are worried if you will have enough money to maintain your lifestyle and if there will be anything left for your family. You are worried about losing your house and retirement assets to pay for your healthcare and long-term care.

You need legal documents that can protect you from medical expenses and losing control of your life. You may even need a guardianship to protect you from abuse.

Elder care attorney Albert Goodwin can help you maintain a comfortable lifestyle while preserving your wealth for the next generation of your family.

Documents to Help Seniors Not Lose Control of Their Life When They Become Disabled

An elder care attorney can prepare documents that help seniors what happens in the event you are not well enough to make your own decisions. A Power of Attorney allows you to appoint a person to manage your financial affairs, a Health Care Proxy allows you to appoint a person to make medical decisions for you and a Living Will makes known your wishes regarding life-prolonging medical treatments.

Power of Attorney

A Power of Attorney is a legal document in which you give another person legal authority to act on behalf of the senior. A senior can select someone they trust, like their child, to be their “agent”. A revocable power of attorney makes sure that you can change your agent at any time.

If you do not have a power of attorney, your family might have no choice but to ask the court to appoint a guardian to make medical or financial decisions on your behalf. This procedure can be expensive and time-consuming and may result in the court appointing someone that you might not have wanted to make financial decisions on your behalf.

Living Will

An elder care attorney will prepare a Living Will, which determines what life-sustaining measures if any, you wish to be taken in case you will not be able to direct the doctors. For example, do you want to leave a do not resuscitate (DNR) instruction? Does your religion dictate a preference? What do you want to happen to your organs? These and many other issues are addressed by your elder care attorney in your living will.

Health Proxy

An elder care attorney will prepare a Health Proxy is a document that specifies the person that you would like to make health decisions for you when you are not able to do so yourself. A Health Care Proxy is a power of attorney for healthcare decisions.

A Trust to Shield Your Assets from Creditors and Predators and Get Medicaid to Protect Your Family from Long-Term Care Costs

An elder care attorney can make a trust that can provide various important benefits to a senior. It can help you get Medicaid and plan for long-term care, as well as provide planning for mental disability.

• Qualify for Medicaid. There are several types of trust that can help some individuals qualify for Medicaid, including home care and nursing home coverage. This helps you avoid spending your hard-earned assets on medical care and long term care, leaving those assets to your family. Learn more about Medicaid trusts.
• Protection from creditors and lawsuits. A properly executed and funded irrevocable trust will shield the principal of the trust from creditors and lawsuits.
• Protection from your children’s spouses and creditors. You may not want any of your hard-earned assets to go to your child’s spouse, whether in divorce or as an inheritance. You do not want any of the assets you give to your child to go to your child’s creditors, whether as a result of a lawsuit or in bankruptcy. A New York elder care attorney can make sure that your hard-earned assets remain in the blood family and not be preyed on by people who are not immediately related to you.
• Provide planning for mental disability. A trust lets you select a trustee – someone you trust to manage your estate on your behalf in the event you become unable to do so yourself. Read more in Planning for Disability.
• Preserve your loved ones’ right to qualify for Medicaid and SSI – if your loved one is disabled and is on means-tested government programs such as Medicaid or SSI, a Special Needs Trust (also known as Supplemental Needs Trust) can help preserve their eligibility. They can continue to qualify to have the government pay for their care, instead of using your hard-earned assets.

A Guardianship to Protect Seniors from Financial Abuse

It is an unfortunate reality that there are some relatives in New York who will use their relationship with an elderly person to their own gain. While elder abuse can take many forms, financial abuse can be one way that a trusted loved one of an elderly person can happen without them even realizing that it is going on. If you believe that you have an elderly loved one that is the subject of financial abuse, the first call you should make is to a New York elder care attorney with experience in dealing with elder abuse and guardianship.

Often, financial abuse is not as obvious to family members as physical abuse. Financial abuse is still a serious matter, however, and there are clues to look for to see if it is happening to your loved one. If the elderly person in your life has handed over control of his or her financial care to a family member in the form of a power of attorney, for example, there could be some major red flags to look for to see if there is financial abuse going on. One thing to look for is whether or not your loved one is still receiving the bank statements and know what is going on with his or her account. If it appears that you loved one does not know what is going on, while at the same time money or valuables are starting to go missing, it is time to take action.

The surest way to fight financial abuse is to petition to be your loved one’s guardian. While no one wants to think about their mother, father or other loved one not being able to make decisions for themselves, this can be the best way to secure that loved one’s finances. Becoming a guardian is the best way to stop someone who is taking advantage of a loved one financially, even if they are using a power of attorney.

Through petitioning for guardianship with the assistance of a New York elder care attorney, you can help your parent gain control over his or her money. The first step is to have an emergency guardian appointed so that accounts can be frozen. This will keep your brother or sister from gaining access to your loved one’s money while the guardianship proceedings are going on. Once a guardian is appointed, the accounts can be under the guardian’s control, meaning that it would not be possible for a financial abuser to take any more money. You can also petition for a full accounting if the suspected abuser has been given power of attorney over your relative. This way, there is a better chance that you will find out where your loved one stands financially.

If you need an elder care attorney to help you maintain a comfortable lifestyle while preserving your wealth for the next generation of your family, call Albert Goodwin at (212) 233-1233 or (718) 509-9774.

Article 81 Guardianships are most suitable for the elderly and victims of trauma. Article 81 guardianship is sometimes also used for the mentally ill and developmentally disabled.

There may come a time when an elderly or disabled loved one can no longer manage their own affairs such as paying bills, banking, managing investments and taking care of their day-to-day living needs. If your relative has been diagnosed with a serious illness, has suffered a stroke, is disabled or has dementia or Alzheimer’s and is showing signs of memory loss, confusion and forgetfulness, it may be time to establish an Article 81 guardianship for your relative. Since the New York laws are complex, the expertise of a New York guardianship attorney is required.

Establishing an Article 81 Guardianship 

To establish an Article 81 guardianship in the State of New York, a person needs to file a petition and other documents in the appropriate court in the county where the alleged incapacitated person lives.

After the petition is filed and everyone involved is formally notified, there will be a court hearing, where the judge will decide what the next steps are going to be. The more complicated or contested the guardianship, the more hearings there will be. For an easy uncontested proceeding, one hearing is usually sufficient.

Guardianships under Article 81 of the Mental Health Law (“MHL Article 81”).

17-A vs. Article 81: SCPA Article 17-A only authorizes a guardian for an individual who is. Article 81 guardianship is not suitable for special needs or developmentally disabled individuals. There is a different type of guardianship for that, it’s called SCPA Article 17-A guardianship. MHL Article 81 guardianships are narrowly tailored and therefore less powerful, giving guardians only the powers that are absolutely necessary for the ward’s needs.

The guardian has a duty to look out for the best interest of the ward. Where the guardianship is of the property, the guardian must submit reports to the court at regular intervals.

The Role of the Article 81 Guardianship Attorneys

The Petitioner’s Article 81 guardianship lawyer files the petition to the court and represents the person who filed it. Article 81 guardianship petitions are usually filed by concerned relatives or the nursing home or long-term care facility where the person in question resides. Their lawyer advances their view or position that a certain guardian should be appointed. If you are planning to file a guardianship petition and need a lawyer, Albert Goodwin, Esq. has more than a decade of experience in guardianships. He can be reached at (212) 233-1233.

Guardianship lawyers perform many important functions. In most proceedings, at least four lawyers are involved, if you court the judge, sometimes many more. These attorneys ensure that cases function smoothly and the rights of everyone involved are protected.

Who Can Be an Article 81 Guardian

New York law requires that the guardian be at least 18 years of age or older and also a legal resident or U.S. citizen. Typically, a guardian of an elderly person is usually an immediate adult family member such as a son, daughter, grandchild, niece, nephew or sibling.

However, New York courts also have the jurisdiction to appoint a qualified non-related person to act as an Article 81 guardian where there is no immediate family member available. This person is usually an attorney, selected from a list maintained by the court. A guardian can be appointed as both the guardian of the person and the property or there can be two separate guardians appointed, one as guardian of the person, and one as guardian of the property. For instance, a son or daughter may be appointed as guardian of the person, but a financial advisor such as a CPA or accountant or legal advisor such as a lawyer may be appointed guardian of the property.

If the incapacitated person’s relatives have a disagreement over who should be appointed guardian, then the court will appoint a neutral non-relative guardian.

Duties of a Guardian

The guardian of the person takes care of the person’s living needs, such as grooming, bathing, meals, house cleaning, grocery shopping and healthcare needs, including medical, dental and nursing, transportation and any other personal day-to-day needs. The guardian of the property takes care of paying bills, banking, property management, collecting rents, managing the person’s business and financial accounts, filing income tax returns, obtaining government benefits such as social security, VA, Medicaid, SSI or Medicare, and any other government benefits. Here is more about the responsibilities of a guardian.

Determining when to establish an Article 81 guardianship is a family decision. The legalities and requirements of establishing one should be discussed with an experienced New York attorney. The attorney can prepare and file the required documents with the court and attend court hearings as well as assist with any tax matters.

Here is more information about New York guardianships:

Is it time to start a guardianship?

How to defend against a guardianship

Preventing financial abuse of seniors

What type of guardianship is right for my situation?

The three types of guardians

The responsibilities of a guardian

What does a guardian of a person do?

What does a guardian of property do?

How much does a guardian get in commissions?

If you wish to speak to a New York Article 81 guardianship attorney with over a decade of experience representing clients in Manhattan, Brooklyn, Bronx, Queens, Staten Island, Suffolk County, Nassau County and Westchester County, call Albert Goodwin, Esq. at (212) 233-1233.

New York Guardianship Attorney Who Treats People with Sensitivity and Care

Individuals who require guardianship are vulnerable elements of society. Older adults, who have done well their entire lives, but are no longer able to take care of themselves. The intellectually disabled or developmentally disabled. The mentally ill. Injury victims. Each has a life story, and their cases are to be treated with extreme sensitivity and care. New York guardianship lawyer Albert Goodwin, Esq. will be indispensable when navigating the process. You can call him at (212) 233-1233 or (718) 509-9774.

Establishing a Guardianship and Appointing a Guardian

To establish a guardianship in the State of New York, a person needs to file a petition and other documents in the appropriate court in the county where the alleged incapacitated person lives.

After the petition is filed and everyone involved is formally notified, there will be a court hearing, where the judge will decide what the next steps are going to be. The more complicated or contested the guardianship, the more hearings there will be. For an easy uncontested proceeding, one hearing is usually sufficient.

The Two Types of Guardianship

There are two major types of New York State guardianships. Guardianships under Article 81 of the Mental Health Law (“MHL Article 81”) and Guardianships under Article 17-A of the Surrogate Court Procedure Act (“SCPA Article 17-A”). Although some individuals can qualify for both types, it is clear in most cases which one fits best.

SCPA Article 17-A Guardianship – Article 17-A guardianships are mostly thought by parents of special needs or developmentally disabled children who are about to turn 18. Those parents use guardianship as a tool to extend their care and control after the disabled person reaches the age of majority.

An SCPA 17-A is granted by the Surrogate’s Court. It can include guardianship of the person, property, or both. A 17-A guardian is authorized to make healthcare decisions.

Typically, the assets of a 17-A ward are held by the clerk of the Surrogate’s Court, unless the court fixes a bond. The guardian will be required to deposit all of the ward’s funds into the account held jointly with the court and will need an endorsement of the surrogate clerk on every check made out of that account.

MHL Article 81 Guardianship – Guardianships for the elderly and victims of trauma are mostly obtained through MHL Article 81 proceedings. Article 81 is sometimes also used for the mentally ill and developmentally disabled.

There may come a time when an elderly loved one can no longer manage their own affairs such as paying bills, banking, managing investments and taking care of their day-to-day living needs. If your relative has been diagnosed with a serious illness, has suffered a stroke, is disabled or has dementia or Alzheimer’s and is showing signs of memory loss, confusion and forgetfulness, it may be time to establish a guardianship for your relative. Since the New York laws are complex, the expertise of a New York guardianship attorney is required.

17-A vs. Article 81: SCPA Article 17-A only authorizes a guardian for an individual who is special needs or developmentally disabled. MHL Article 81 does not have that limitation, and so can be applied to any individual who admits to being incapacitated or is determined by the court to be incapacitated. On the flip side, MHL Article 81 guardianships are often less powerful, giving guardians only the powers that are absolutely necessary for the ward’s needs.

Common Elements of 17A and Article 81: In both types of guardianships, the guardian has a duty to look out for the best interest of the ward. Where the guardianship is of the property, the guardian must submit reports to the court at regular intervals.

The Role of the Guardianship Attorneys

The Petitioner’s guardianship lawyer files the petition to the court and represents the person who filed it. Guardianship petitions are usually filed by concerned relatives or the nursing home or long-term care facility where the person in question resides. Their lawyer advances their view or position that a certain guardian should be appointed. If you are planning to file a guardianship petition and need a lawyer, Albert Goodwin, Esq. has more than a decade of experience in guardianships. He can be reached at (212) 233-1233.

Guardianship lawyers perform many important functions. In most proceedings, at least four lawyers are involved, if you court the judge, sometimes many more. These attorneys ensure that cases function smoothly and the rights of everyone involved are protected.

Who Can Be a Guardian

New York law requires that the guardian be at least 18 years of age or older and also a legal resident or U.S. citizen. Typically, a guardian of an elderly person is usually an immediate adult family member such as a son, daughter, grandchild, niece, nephew or sibling.

However, New York courts also have the jurisdiction to appoint a qualified non-related person to act as a guardian where there is no immediate family member available. This person is usually an attorney, selected from a list maintained by the court. A guardian can be appointed as both the guardian of the person and the property or there can be two separate guardians appointed, one as guardian of the person, and one as guardian of the property. For instance, a son or daughter may be appointed as guardian of the person, but a financial advisor such as a CPA or accountant or legal advisor such as a lawyer may be appointed guardian of the property.

If the incapacitated person’s relatives have a disagreement over who should be appointed guardian, then the court will appoint a neutral non-relative guardian.

Duties of a Guardian

The guardian of the person takes care of the person’s living needs, such as grooming, bathing, meals, house cleaning, grocery shopping and healthcare needs, including medical, dental and nursing, transportation and any other personal day-to-day needs. The guardian of the property takes care of paying bills, banking, property management, collecting rents, managing the person’s business and financial accounts, filing income tax returns, obtaining government benefits such as social security, VA, Medicaid, SSI or Medicare and any other government benefits. Here is more about the responsibilities of a guardian.

Determining when to establish a guardianship is a family decision. The legalities and requirements of establishing one should be discussed with an experienced New York attorney. The attorney can prepare and file the required documents with the court and attend court hearings as well as assist with any tax matters.

Here is more information about New York guardianships:

Is it time to start a guardianship?

How to defend against a guardianship

Preventing financial abuse of seniors

What type of guardianship is right for my situation?

The three types of guardians

The responsibilities of a guardian

What does the guardian of a person do?

What does a guardian of property do?

How much does a guardian get in commissions?

If you wish to speak to a New York guardianship attorney with over 10 years of experience representing clients in Manhattan, Brooklyn, Bronx, Queens, Staten Island, Suffolk County, Nassau County and Westchester County, call Albert Goodwin, Esq. at (212) 233-1233.

A guardianship lawyer is called upon when a person who cannot take care of themselves needs a guardian. In states like New York, where a guardian can only be appointed by the court, lawyers play a very important role in the guardianship process. If you need a guardianship lawyer in New York, you can call the Law Offices of Albert Goodwin at (212) 233-1233 or (718) 509-9774.

• Lawyer for the Petitioner files the guardianship petition to the court and represents the person who filed it. Guardianship petitions are usually filed by concerned relatives or the nursing home or long-term care facility where the person in question resides. Their lawyer advances their view or position that a certain guardian should be appointed.
• Lawyer for the Alleged Incapacitated Person represents the person who is being considered for having a guardian appointed for them. More often than not, the person themselves is too incapacitated to hire their own attorney, so the judge appointed a guardianship lawyer for them from the list of lawyers who are willing to serve as such. It is up to this lawyer to determine what the best interest of that usually troubled person are. Sometimes the client can communicate with the lawyer, at least somewhat. As a matter of fact, a client can have very strong opinions about where the guardianship should be headed. A client can say that they don’t want a guardian appointed, or they prefer a specific person such as a favored relative or a friend to be their guardian. Other clients are so incapacitated that their lawyer will have to deduce what is in the best interests of their clients. If a client cannot even communicate cohesively with their own guardianship lawyer, then it is likely they need a guardian, the only question is who that guardian should be.
• Court Evaluator is appointed in every guardianship case, at least in New York, to visit the person in question in the place where they reside, interview them as well as everyone involved in their lives and prepare a report for the judge. This is done because the judge does not have the time to visit every person whose guardianship they are considering. The judge relies heavily on the court evaluator for information about the circumstances of the life of the person whose guardianship is being considered. The court evaluator is typically a guardianship attorney as well, chosen from a list of lawyers who are willing to serve as a court evaluator.
• Lawyers for Relatives and Friends of the Who May Need a Guardian. Each relative or a friend can be represented by their own Guardianship Lawyer. In case where there is a disagreement over issues such as as whether the person in question needs a guardian or who should serve as the guardian, the people involved sometimes group into “camps,” with each of the opposing sides of the issue having their own guardianship attorney. The disagreements are usually over whether the person needs a guardian and who the guardian should be.
• Court-Appointed Guardian. If no relative steps forward to become a guardian, or one or more of the relatives disagrees with the other relative becoming the guardian, the court appoints a guardian from the list of Guardianship attorneys who are willing to serve as a court-appointed guardian. This attorney then assumes the responsibilities of a guardian, which is a big task that involved things like visiting the person at least four times a year, making sure they are well taken care of, making medical decisions for them, managing their money and other things that the judge directs in the guardianship order. The attorney who serves as a court-appointed guardian must make a report to the court in May of each year, which include things like what money was spent and on what and a summary of what the person in need of guardian started with and what money they have left that year.
• Temporary Guardian. In the beginning of the guardianship, when it seems likely that the person in question will need a guardian but it’s not yet clear whether they will actually need a guardian or not, or it’s not yet clear who that guardian should be, the court can appoint a temporary guardian for the duration of the legal proceeding. A guardianship proceeding can span many months and require multiple hearings. To determine whether the person in question needs a guardianship, the judge will have to wait for the court evaluator to investigate and issue the court evaluator report. The judge may also have to wait for the different friends and/or relatives and sometimes the person in question to agree who the guardian should be, if anyone at all. A temporary guardian performs duties of a guardian during that transition period. A temporary guardian is usually a guardianship lawyer selected from the list maintained by the judge of the guardianship attorneys who are willing to serve as temporary guardians. This person often transitions to become the permanent court-appointed guardian.
• Guardian Ad-Litem means guardian for that proceeding only. If there are people affected by the guardianship proceeding who don’t have a guardian and don’t have the mental capacity to understand the legal proceeding, or are minors, the judge will appoint a guardian ad litem to represent their interest in the guardianship. This is in addition to the temporary guardian for the person who is the subject of the guardianship – this is for other people involved. A guardian ad litem is a guardianship lawyer from the list of guardianship attorneys who are willing to serve as guardian ad litem. The guardian ad litem will have to represent the best interests of their client. The guardian ad litem will communicate with their client in order to determine what their interests are, and if the client is not able to communicate, the guardian ad litem will have to determine what their clients’ needs are to the best of their ability.
• Court Attorney – a court attorney assists the judge with the day-to-day functions of the case. They are essentially an assistant judge. They make sure the case stays on track, check on status, and conduct conferences with the guardianship lawyers involved in the case. A court attorney assigned to a guardianship is usually a guardianship attorney.
• The Judge, typically a lawyer by training, determines if the person in question needs a guardian. If a guardian is needed, the judge determines who will serve as the guardian. A guardian can be a relative, an administrator of the facility where the person in question resides or a lawyer from a list of willing lawyers that each judge maintains. Guardianship cases are complex and a Judge cannot resolve them without the help of many guardianship lawyers. Some of the lawyers are retained by the people involved, and some of them are appointed by the judge.

Guardianship lawyers perform many important functions in a guardianship proceeding. In most guardianship proceedings, at least four lawyers are involved, if you court the judge, sometimes many more. These attorneys ensure that guardianship cases function smoothly and the rights of everyone involved are protected.

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Albert Goodwin, Esq. has been a New York guardianship lawyer for over a decade. He has practiced in both Surrogate’s Court and Supreme Court in many capacities, and has been on the list of court evaluators and court-appointed guardians. If you have any questions for a New York guardianship attorney, you can call Albert Goodwin, Esq., a New York estate, guardianship, wills, trust, medicaid and probate lawyer with over a decade of experience at (212) 233-1233 or (718) 509-9774.

Acting as guardian is time-consuming work that involves many hours in court, working on documents and helping the ward. Hence, guardian commissions. New York law allows for compensation for those who are acting as guardian so that they are reimbursed for the time that they spend on a guardianship matter.

The laws behind guardian commissions are somewhat opaque. New York statute allows for “reasonable compensation” of a guardian who is appointed by the court. This gives the courts a lot of leeways when it comes to how much a guardian can earn, meaning that compensation can vary vastly from case to case. In some cases, the courts may attempt to use the pay structure similar to commissions for a trustee or even commissions for an executor of an estate. However, these pay structures may not fit every case.

For those guardianship matters that are especially complicated, the courts may award a bigger compensation to the guardian. An example of this would be if a guardian has to spend more time than would be considered standard dealing with a guardianship because the person subject to the guardianship requires a greater amount of care. In instances such as that, the court would be more likely to award greater compensation to the guardian because of the extra effort that needs to be put into their duties.

On the flip side of this would be the court awarding less than the standard amount that would be given to a trustee or administrator when it comes to a guardian that is not doing his or her duty. If a guardian has only minimal contact with the person they owe a duty to or are neglecting their duties entirely, it is much more likely that the court would find that it would not be considered equitable to award much for that guardian’s work, if the court even awards a commission at all. Not fulfilling the fiduciary duties that are required of a guardian could create real issues for that guardian when it becomes time to be awarded his or her commission.

It is strongly recommended for anyone who feels they need to become a guardian over a friend or loved on that they contact a New York guardianship attorney to deal with their petition and work on the legal matters that come with the guardianship, such as petitioning the court for compensation for acting as guardian. Call the Law Offices of Albert Goodwin at (212) 233-1233, New York estate, guardianship, wills, trust, Medicaid and probate lawyer, and make an appointment today.

It is unfortunate that adult children with an elderly parent may isolate that parent from their siblings.  For the sibling who is being kept away from his or her parent, there is likely to be a lot of frustration and fear about their parent’s health and well-being.  There could be times when a child who is being kept away from their parent may want to intervene so that they can gain control over a parent who needs assistance, especially if it appears there may be something suspicious going on.  Isolation of a parent should not be ignored, and a New York guardianship attorney can help work with you to step in for an ailing loved one.

Isolation of an elderly loved one could be a sign of abuse, including financial, emotional or physical abuse.  For those adult children who are given access to that parent, they may wonder what they should do so that they can step in, in case there is abuse going on.

If you suspect physical abuse, consider contacting the police or Adult Protective Services.

One potential option is to petition for guardianship so that access to the parent can be forced on a sibling trying to isolate that parent.  Additionally, a person who becomes guardian can gain some control over access to a parent, meaning that, if evidence of some sort of abuse is discovered, the potential abuser can be separated from a parent in order to end the abuse.

Under New York law, the amount of control that a guardian has over their ward is meant to take into account what a ward’s abilities are, rather than simply taking all power away.  This means that there could be a small amount of power, such as paying bills, or more power, such as controlling where an elderly person lives, who they associate with or how doctors should proceed with health care.

If a child suspects one of their siblings is keeping a parent isolated from them in order to hide abuse, it would be possible to take control of the parent through guardianship. If a sibling had control over the parent with a power of attorney or health care proxy, either signed before incapacitation or under more suspicious circumstances, a guardian may be able to get void those powers so that the isolating child would no longer have legal power.

A New York guardianship attorney is the best one to help you when you are determining whether or not you want to petition for guardianship over your parent.  Your attorney can let you know how much power you should ask for and what steps you can take over a parent who is being isolated by your siblings. Call the Law Offices of Albert Goodwin at (212) 233-1233, New York estate, guardianship, wills, trust, Medicaid and probate lawyer, and make an appointment to discuss.

The most important thing in a Guardianship proceeding is the needs of the person who is alleged to be incapacitated. If they are lacking capacity to the extent that the court needs to take away their independence and appoint a guardian, than a Guardian needs to be appointed.

However, Guardianships are often brought as a de-facto will contest, either shortly after a person made a Will or to prevent a person from having the capacity to make a Will. Most people wish to preserve their independence, including the capacity to bequeath their estate to whomever they see fit. This is why it is important to defend the Guardianship, if appropriate. If the person has capacity, than the goal is to dismiss the Guardianship. If the person needs some assistance, than the goal is to narrowly tailor the Guardianship,  only appointing a guardian that fits the persons needs and not declaring the person to be completely incapacitated.

Guardianships in New York are narrowly tailored, meaning that New York does not require a full guardianship with a declaration that a person is completely incapacitated. A person can have a custom-made Guardianship just to address their needs. For example, if someone is able to balance their checkbook but is unable to go shopping by themselves and cook their own meals, a Guardian is appointed only to look after those needs.

Furthermore, New York has two types of guardianships – Personal Needs and Property Management. Even though they often go together, it’s not necessarily so. A person can have one or the other, as appropriate. Many people’s ability to take care of their personal needs goes way before the ability to manage property.

In a Guardianship proceeding, a court evaluator will be appointed to investigate the extent of the Alleged Incapacitated Person’s capacity. They will make home visits and interview the AIP, their relatives, caretakers, healthcare professionals and anyone else involved in their lives. They will try to get a picture of the AIP’s assets, assess the AIP’s ability to manage their finances, and make sure that the AIP is not being taken advantage of.

Although some people need Guardianships, many people do not and vehemently oppose them. If you or a loved one has a guardianship proceeding brought against them, speak with Guardianship defense attorney Albert Goodwin, call (212) 233-1233.

Under New York laws, there must be a valid reason for the appointment of a guardian establishing that the person is unable to care for the person’s personal needs or financial care. In deciding whether the appointment of a guardian is necessary, the court must consider all evidence and testimony and make independent observations as to whether the guardianship is necessary and has the authority to approve the designated guardian.

For example if a family member is a drug user, it may be necessary to establish a guardianship of the person and the property if there is a valid concern that the person might squander his or her funds on drugs or cause harm to himself or herself.

Another reason for establishing a New York guardianship for someone who is a drug user is that the person may be mentally or physically incapacitated to make financial or personal decisions. In extreme cases, they may not even be able to care for him or herself on a day to day basis such as bathing or preparing meals or going to doctor appointments.

It is important to talk to a New York estate attorney about the type of guardianship and the reason for the guardianship you wish to establish. Guardianship cases in New York are handled in both Family Court and Surrogate’s Court.

Procedure

Drug abuser guardianships are brought under Article 81 of the Mental Hygiene Law. Your attorney will file a petition for appointment of guardianship with the proper court. A hearing will be scheduled. If the guardianship is for a person over the age of 14, you will also need to obtain consent of the child and written permission from the parents, if you are a third party making the request for guardianship. If a parent or both parents are deceased, it will be necessary to present the death certificate(s) to the court. It is also necessary to present the child’s original birth certificate and proof of citizenship and proof of the child’s residence.

The court will appoint a neutral court evaluator to present a report to the court as to the competency of the alleged incapacitated person (AIP). A court may also appoint an attorney to represent the alleged incapacitated person.

Witnesses and testimony may be heard at the hearing from family and other interested parties and the person who is the subject of the guardianship, as long as the person is over the age of 14 years, in helping to determine who should be appointed as guardian. The judge will decide whether or not a guardianship appointment is appropriate. In order to become a legal guardian, you must receive a letter of appointment from the judge presiding over the guardianship case.

If you wish to establish a guardianship in New York for someone with a drug problem or for other valid reasons, it is recommended that you speak with a New York guardianship attorney for advice on setting up the guardianship and the necessary documentation that is required.

If you wish to speak to a New York guardianship attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.

There may come a time when an elderly loved one can no longer manage their own affairs such as paying bills, banking, managing investments and taking care of their day-to-day living needs. If your relative has been diagnosed with a serious illness, has suffered a stroke, is disabled or has dementia or Alzheimer’s and is showing signs of memory loss, confusion and forgetfulness, it may be time to establish a guardianship for your relative. Since the New York guardianship laws are complex, the expertise of a New York guardianship, probate and estate attorney is required.

Establishing a Guardianship and Appointing an Guardian

Under New York law, there are two major types of guardianships. The most widely used type of guardianship for elderly persons who have suffered a brain injury, brain disease such as dementia and who are mentally or physically incapacitated is a guardianship under MHL Article 81. New York law requires that the guardian be at least 18 years of age or older and also a legal resident or U.S. citizens. Typically, a guardian of an elderly person is usually an immediate adult family member such as a son, daughter, grandchild, niece, nephew or sibling.

However, the New York Surrogate’s Court also has the jurisdiction to appoint a qualified non-related person to act as guardian where there is no immediately family member available. A guardian can be appointed as both the guardian of the person and the property or there can be two separate guardians appointed, one as guardian of the person, and one as guardian of the property. For instance, a son or daughter may be appointed as guardian of the person, but a financial advisor such as a CPA or accountant or legal advisor such as a lawyer may be appointed guardian of the property.

Guardianship Duties

The guardian of the person takes care of the person’s living needs, such as grooming, bathing, meals, house cleaning, grocery shopping and healthcare needs, including medical, dental and nursing, transportation and any other personal day-to-day needs. The guardian of the property takes care of paying bills, banking, property management, collecting rents, managing the person’s business and financial accounts, filing income tax returns, obtaining government benefits such as social security, VA, Medicaid, SSI or Medicare and any other government benefits. Here is more about responsibilities of a guardian.

Determining when to establish a guardianship is a family decision. The legalities and requirements of establishing a guardianship should be discussed with an experienced New York probate and estate attorney. The attorney can prepare and file the required documents with the court and attend court hearings as well as assist with any tax matters.

If you wish to speak to a New York guardianship attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.