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How to Fight a Guardianship

how to fight a guardianship
You want to know how to fight a guardianship because you and you don’t want your freedom to be taken away. Your rights are of the utmost importance, and there should never be a situation where the court takes away the self-determination rights of a person who is capable of making their own life decisions.

Your relatives (usually children or siblings) are bringing a guardianships in order to prevent you from being influenced by someone who is not them. They may be concerned that you are giving money away to a child or a relative, a caretaker or a person of romantic interest. Remember that you do have the right to manage your money however you see fit, even if your relatives don’t agree with that decision.

Your relatives might also be concerned that you are making a will with them not in it. A person’s children or siblings often attempt 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 fight the guardianship, if appropriate.

When a guardianship is brought and the person in question 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.

The most important thing in a guardianship proceeding are your needs. Unless you are lacking capacity to the extent that the court needs to take away your independence and appoint a guardian, there is no need to appoint a guardian and you need to fight whoever brought the petition in court. A person is presumed to have the capacity to make their own life decisions unless proven otherwise. It is important to have an experienced guardianship attorney represent you in court in order to put your best case forward.

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, wishing to know how to fight a guardianship with everything they’ve got. If you or a loved one has a guardianship proceeding brought against them, speak with Guardianship defense attorney Albert Goodwin, call (212) 233-1233 or (718) 509-9774.