If you think that your brother’s condition has deteriorated to the point where he is no longer able to make personal or financial decisions for himself, you may want to consider becoming his legal guardian. Bringing a proceeding to obtain guardianship over your brother can be a tough decision, and one that your brother may or may not agree with and may or may not fully comprehend due to their diminished mental state. The main thing is that you have your brother’s best interest at heart.
A Guardianship to Protect Your Brother From Financial Abuse
You may be suspecting that someone is using their relationship with your brother to their own gain. Financial abuse can take many forms, and can happen without them even realizing that it is going on. If you believe that your brother is the subject of financial abuse, the first call you should make is to talk to an attorney with experience in dealing with financial abuse and guardianship. Albert Goodwin, Esq. can be reached at 718-509-9774.
Often, financial abuse is not as obvious 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 brother. If your brother has handed over control of his financial to a family member, caretaker or an acquaintance 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 brother is still receiving the bank statements and know what is going on with his account. If it appears that your brother 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 brother’s guardian. While no one wants to think about their brother not being able to make decisions for himself, this can be the best way to secure your brother’s finances. Becoming a guardian is the best way to stop someone who is taking advantage of your brother financially, even if they are using a power of attorney.
Through petitioning for guardianship with the assistance of a New York guardianship attorney, you can help your brother gain control over his finances. The first step is to have an emergency guardian appointed so that accounts can be frozen. This will keep the person who is taking advantage from gaining access to your brother’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 brother. This way, there is a better chance that you will find out where your brother stands financially.
If you are bringing an application to be appointed as a guardian of your brother’s person and property, you should have a guardianship attorney prepare the initiating documents, such as an order to show cause and petition for guardianship with exhibits, explaining to the court why you should be appointed as your brothers guardian. The petition and order to show cause may request a temporary guardianship until you are appointed as permanent guardian for your brother.
Grounds to Become Your Brother’s Guardian
There are certain grounds that would make it more likely for you to succeed in becoming your brother’s guardian. People tend to have diminished capacity to make personal and financial decisions when they are suffering from an array of conditions.
- Alzheimer’s – this is the biggest cause of dementia. Early-onset can start as early as the age of 40 or 50, and progresses with age. It destroys cognitive functioning and may cause a person to lose the capacity to make financial and personal decisions.
- Vascular Dementia – often caused by a stroke, results from obstruction of blood flow to the brain
- Parkinson’s Decease – degeneration of nerves in the brain.
- Frontotemporal Dementia – deterioration and shrinkage in front and side areas of the brain
- Dementia due to head injuries
- Dementia due to HIV or medications
Changes in memory and behavior in older adults usually point to dementia. The gradual cognitive decline caused by a degenerative condition eventually results in the loss of mental capacity required to make financial and personal decisions. The more dementia progresses, the harder it becomes to make decisions. Therefore, the later the stage of your brother’s dementia, the more likely it is that you would be able to become his guardian.
Mental illness in and of itself does not mean that your brother lacks the capacity to make decisions. For your guardianship application to work, you will need to prove that mental illness affects your brother’s ability to make decisions.
Some examples of mental illness that can impact a person’s capacity to make decisions and your chance at a guardianship are:
- Depression – Your brother feels hopeless and passive and do not care what happens after he gives away his property or makes financial or personal decisions that would have an adverse effect on his life. People often suffer from depression. Family conflicts relating to money only exacerbate their depression.
- Paranoia – The pervasive distrust of people with paranoia can make it easier to manipulate and “triangulate” them into giving away their money or favoring them in their will.
- Bipolar – People with bipolar disorder experience mood swings from extreme highs (mania) to extreme lows (depression). Caretakers, relatives and acquaintances can exploit those mood swings to get your brother to give them money or favor them in their will.
- Schizophrenia – People with schizophrenia experience delusions and distorted reality. Caretakers, relatives and acquaintances can take advantage of those mental deficiencies in order to manipulate your brother into giving them money or some other financial benefit.
Personality disorders are not indicative of a lack of capacity. But they can still make some difference if you are trying to become your brother’s guardian. For example, if your brother has a “Cluster C” Dependent Personality Disorder, then he can be vulnerable to people who take advantage of him and can have problems making personal and financial decisions. You can point to symptoms such as:
- excessive dependence on others
- submissive behavior
- fear to have to provide self-care
- difficulty disagreeing with others and
- tolerance of poor or abusive treatment
Weak Physical State – Your brother’s week physical state can adversely affect your brother’s capacity to make personal and financial decisions.
Mind-Altering Pharmaceuticals – If your brother is taking mind-altering pharmaceuticals, his capacity to make personal and financial decisions may be diminished. Sedatives, antipsychotics, and pain medications can push a mental state over the edge of capacity.
New York Mental Health Law 81.12(a) states that a determination that a person is incapacitated under the provisions of this article must be based on clear and convincing evidence. The burden of proof shall be on the petitioner.
It is on you to meet your burden of proof, by presenting evidence of your brother’s lack of capacity to make personal and financial decisions.
New York Mental Health Law 81.02 (a) states that:
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 of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person; and
2. that the person agrees to the appointment, or that the person is incapacitated as defined in subdivision (b) of this section.
An appointment is not necessary to provide for most people’s personal needs. If you are like most people, you are competent to manage your own affairs and do not agree to the appointment of a guardian.
New York Mental Health Law 81.02 (b) states that:
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:
1. the person is unable to provide for personal needs and/or property management; and
2. the person cannot adequately understand and appreciate the nature and consequences of such inability.
New York Mental Health Law 81.02 (c) states that:
In reaching its determination, the court shall give primary consideration to the functional level and functional limitations of the person. Such consideration shall include an assessment of that person’s:
1. management of the activities of daily living, as defined in subdivision (h) of section 81.03 of this article;
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; and
4. the nature and extent of the person’s property and financial affairs and his or her ability to manage them.
It shall also include an assessment of (i) the extent of the demands placed on the person by that person’s personal needs and by the nature and extent of that person’s property and financial affairs … (iii) any mental disability, as that term is defined in section 1.03 of this chapter, … and the prognosis of such disability… and (iv) any medications with which the person is being treated and their effect on the person’s behavior, cognition and judgment.
New York Mental Health Law 81.03 (h) defines management of activities of daily living as follows:
Activities such as, but not limited to, mobility, eating, toileting, dressing, grooming, housekeeping, cooking, shopping, money management, banking, driving or using public transportation, and other activities related to personal needs and to property management.
Guardianship proceedings are complicated. They involve many different people with different functions, such as a court evaluator, your attorney, your attorney, the judge and the law clerks of the court. There will be court hearings, court documents and submission of evidence. If you are considering becoming your brother’s guardian, you can call Albert Goodwin, Esq. at 718-509-9774, 718-509-9774 or 516-777-0647 and request a consultation.