1. How do I know if guardianship is an appropriate course of action?
An individual may require the appointment of a guardian if he/she is unable to manage his/her own financial affairs and personal needs due to a physical or mental impairment. However, guardianship is treated as a last resort. It is commonly used in situations where an individual is incapable of executing any advanced directives, such as a Power of Attorney, Health Care Proxy, or a Trust, or where an individual may have the ability to execute such documents, but has no family member or friend to name as his/her agent.
2. Who can commence a guardianship proceeding?
The party who commences the guardianship proceeding is referred to as the Petitioner and the subject of the proceeding is referred to as the Alleged Incapacitated Person. Under New York's Mental Hygiene Law, a guardianship proceeding may be commenced by (1) the Alleged Incapacitated Person, (2) a presumptive distributee of the Alleged Incapacitated Person (meaning anyone who is expected to take or share in the estate of the Alleged Incapacitated Person, such as a spouse, child, or parent of the Alleged Incapacitated Person), (3) the Trustee of a Trust where the Alleged Incapacitated Person either created the Trust (as the grantor) or is a beneficiary of the Trust, (4) the Executor or Administrator of an estate where the Alleged Incapacitated Person is a beneficiary, (5) a person otherwise concerned with the welfare of the Alleged Incapacitated Person (such as the Department of Social Services), (6) the person with whom the Alleged Incapacitated Person resides, or (7) the Chief Executive Officer or Administrator of a facility where the Alleged Incapacitated Person is a patient or resident.
3. What do you have to prove in order for the Court to appoint a guardian?
Under New York's Mental Hygiene Law, 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, or to manage the property and financial affairs, of the person, or both, and (2) that the person agrees to the appointment or that the person is incapacitated.
A determination of incapacity requires clear and convincing evidence that a person is likely to suffer harm because (1) he or she is unable to provide for his or her personal needs or unable to manage his or her property and financial affairs; and (2) he or she cannot adequately understand and appreciate the nature and consequences of such inability.
4. Do you need medical testimony at the hearing?
No, medical testimony is not required in order to obtain the appointment of a guardian.
5. If I commence a guardianship proceeding for my family member, will I need to testify at the hearing? If so, will my family member be present?
Yes. The Petitioner must be present at the guardianship hearing and provide testimony as to the functional limitations of the Alleged Incapacitated Person.
The Alleged Incapacitated Person has a right to be present at the hearing. In fact, if the Alleged Incapacitated Person cannot physically come or be brought to the courthouse, the hearing must be conducted where the Alleged Incapacitated Person resides, unless the Alleged Incapacitated Person is completely unable to participate at the hearing or no meaningful participation will result from his/her presence.