If you find yourself worrying about a parent’s ability to care for himself/herself or about the increasing likelihood of injury, it may be time to consider guardianship over your parent. Like many adult children, you may be resistant to the idea of petitioning to become your parent’s Guardian because it feels like you are taking away your parent’s freedom or independence. Keep in mind, however, that failing to pursue guardianship could place your parent at increased risk for serious injury or becoming the victim of predators who prey on the elderly. To help you decide how to proceed, the Long Island elder law attorneys at Eghrari Wealth Training Firm help you consider whether it’s time for guardianship.
What Is Guardianship?
Guardianship is a legal relationship created by order of a court whereby an individual or organization (the “Guardian”) has legal authority to make personal decisions for someone (often referred to as the “Ward”), and/or to control the estate of someone who has been determined to be disabled or incompetent by a court and, therefore, in need of a Guardian. If appointed Guardian of the person, you would have authority to do things such as decide who will care for the Ward, access and release medical records, or apply for government benefits for the Ward. As Guardian of the estate you might have the authority to manage the Ward’s property and investments, pay bills, and/or enter into contracts in the Ward’s name.
What Is the Legal Standard in New York for the Appointment of a Guardian?
In the State of New York, the proposed Ward must agree to the appointment of a Guardian or you must prove to the court that the proposed Ward is incapacitated. A determination of incapacity requires clear and convincing evidence that a person is likely to suffer harm because:
- The person is unable to provide for personal needs or unable to manage property and financial affairs; and
- The person cannot adequately understand and appreciate the nature and consequences of such inability.
How Do I Become My Parent’s Guardian?
Because guardianship is considered to be the most restrictive option, the process for becoming a Guardian requires you to petition the appropriate court and secure the court’s agreement that guardianship is necessary. After you file the Petition for Guardianship you must serve notice to the proposed Ward and to close family members. The court will likely order an independent examination as well as consider the evidence you present at a hearing. Ultimately, the court must be convinced that a less restrictive alternative is insufficient to ensure the ward’s safety. When you petition to become Guardian, you must serve both your parent and immediate family members. Any of them may object to the appointment of any Guardian or specifically to your appointment as Guardian.
How Do I Initiate the Guardianship Process?
If you think it may be time to consider guardianship, the first step should be to consult with an experienced guardianship attorney. An attorney can help you decide if guardianship really is necessary or if a less restrictive alternative will suffice. If it does appear that guardianship is warranted, your attorney will prepare the Petition for Guardianship and file it with the court. It will also likely be necessary to access medical records for your parent and/or to have a medical examination performed prior to filing the petition. A guardianship attorney can help you with both of these requirements as well.
Contact Long Island Elder Law Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about guardianship in New York, contact the Long Island elder law attorneys at Eghrari Wealth Training Firm by calling us at 631-265-0599 to schedule your appointment.
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