If your brother is bringing an application for the appointment of a guardian of your person and property, and you are trying to stop them, you should be aware of your rights. You should have an attorney submit a response, such as an answer and objections to the petition of your brother who is asking to be appointed as your guardian.
If you are like most people, you do not need your brother to make decisions for you. You can manage your own personal and property affairs. You are a competent adult who can take care of themselves.
You would not want to give your brother the capacity to make financial and personal decisions for you, to restrict how you can spend your money and to have the ability to involuntarily commit you to a mental institution at his whim.
There are plenty of reasons why a brother may feel that he can become your guardian. You may be suffering from some of the following:
- 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 dementia, the more likely it is that your brother can become your guardian.
Mental illness in and of itself does not mean that you lack capacity to make decisions. For your brother’s guardianship to work, he will need to prove that mental illness affects your ability to make decisions. Some examples of mental illness that can impact a person’s capacity to make decisions and your brother’s chance at a guardianship are:
- Depression – You feels hopeless and passive and do not care what happens after you give away your property or make financial or personal decisions that would have an adverse effect on your life. The elderly often suffer from depression towards the ends of their lives. 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 that person 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 the person 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 your brother is trying to become your guardian. For example, if you are suffering from a “Cluster C” Dependent Personality Disorder, then you can be vulnerable to people who take advantage of you and can have problems making personal and financial decisions. Your brother 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 week physical state can adversely affect your capacity to make personal and financial decisions.
Mind-Altering Pharmaceuticals – If you are taking mind-altering pharmaceuticals, your capacity to make personal and financial decisions can be diminished. Sedatives, antipsychotics, and pain medications can push a mental state over the edge of capacity.
Your mental condition will probably not be enough for your brother to become your guardian. Especially if your condition is well managed, you can take care of your activities of daily living and you are compliant with your medications.
Most people would say that they do not need supervision to take their medications, and even if they did, they would say that a guardianship wouldn’t do anything to make a difference in that regard.
You would probably deny that you exhibit an inability to manage your finances. Most competent adults are financially responsible.
Your brother may be suspecting that someone is using their relationship with you for their own financial gain. Financial abuse can take many forms, and can happen without you even realizing that it is going on. If you are giving your money away or giving access to your finances to someone else, there may be a case that financial abuse is an issue. But ultimately, it is up to you to do as you wish with your finances, as long as you are a mentally competent adult.
Your brother may feel that by spending your money or giving your money as gifts to your friends or other family members, you are squandering your brother’s inheritance. You response would be that you are entitled to spend your money any way you choose.
If you are a competent adult, you do possess the ability to understand and appreciate the nature and consequences of my present condition and deficiencies. You realize what your mental and medical issues are and that you may need to take medication to control those conditions.
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 your brother to meet his burden of proof. He has probably not done so, as proof is difficult in guardianship cases.
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.
If you are like most people, you are able to provide for my own personal needs and property management, which you have been doing your entire life.
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.
If your mental condition is managed be medication and does not preclude you rom managing activities of daily living, your attorney would argue to the court that you do not need a guardian.
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.
If you are like most people, you are able to manage activities of daily living as defined above, by yourself without a need for a guardian. You are probably doing just fine and continue to do fine. Just like any other independent adult, your preference and wish is to manage your own life, not to have anyone manage your personal and financial decisions.
You are likely to be asking the court that that your brother’s petition for guardianship and any other relief be denied in its entirety, that he be ordered to pay his own attorney’s fees for this baseless proceeding, that he be ordered to pay all of the attorney, court evaluator and other fees and costs and that he be ordered to pay your attorney’s fees.
Guardianship proceedings are complicated. They involve many different people with different functions, such as a court evaluator, your attorney, your brother’s attorney, the judge and the law clerks of the court. There will be court hearings, court documents and submission of evidence. The court will appoint an attorney for you, but if you feel that you are best served with a privately retained attorney, you don’t have to accept the court-appointed attorney. You can call Albert Goodwin, Esq. at 212-233-1233, 718-509-9774 or 516-777-0647 and request a consultation.