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The process to obtain guardianship over an incapacitated adult

Many adults deal with dementia or Alzheimer’s disease. If your loved one is incapacitated, you may want to step in and manage their life. To do this legally, you need to be granted guardianship of that person, taking them as a ward. 

Obtaining guardianship over a person over 18 years old falls under the Article 81 Guardianship statutes. In New York, any person over the age of 18 can petition the court to make legal decisions for another person who is unable to manage their affairs. The guardian also needs to be a citizen of the United States and cannot have a criminal record. 

The first step in obtaining guardianship is the petition. This document is about eight pages long and outlines the reasons the ward needs guardianship. There are different types of guardianship: 

  • Guardian of the person, which allows the guardian to make life decisions for the ward
  • Guardian of the property, which allows the guardian to handle the ward’s assets
  • Guardian of the person and property, which gives the guardian complete responsibility over the ward
  • Guardian ad litem, which is when the judge assigns a guardian for another person to act on his or her behalf through a court case 

The petition includes information about the ward’s health and ability to manage his or her affairs. It also asks about the guardian's suitability for that role. You will also have to list what type of powers you are requesting. 

You must file this petition with the Supreme Court, which will hold a hearing before granting guardianship. You may need to produce doctor’s statements or other documents to back up your claim.

It is recommended that you speak to an attorney to ensure you handle the process correctly and don't make any mistakes that would lead the courts to deny your petition. It can be difficult when your family members get older, but you can protect them with a legal guardianship. 

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