What to know if you are trying to establish or contest guardianship for an elderly individual

As our family members age, it may become necessary to make decisions they are unable to make, such as healthcare and financial decisions. A guardian may need to be appointed in these instances, particularly if one has not been specifically designated. 

What is guardianship?

A guardian can be chosen or appointed to make legal decisions for someone unable to make decisions for themselves. Guardianship is common for minor children; however, it can become necessary to choose a guardian for an aging family member or friend who is unable to make decisions on their own. This designation can be done prior to any decline in mental capacity via a durable power of attorney (DPOA) document, choosing a trusted family member or friend. In the case of a sudden change in mental capacity when there is no DPOA assigned, the state may choose to appoint someone, particularly if there are disagreements among family members regarding who should be DPOA.

Establishing guardianship

The simplest way to establish guardianship is by appointing a guardian prior to needing one. If your loved one has not prepared for this situation and is unable to make decisions, there are a few things you may need to do. To be a guardian, you must be appointed by either the State Supreme Court or a County Court in New York State. After a petition is filed with the court, they will assign a court evaluator to interview, if possible, the individual who is incapacitated, as well as you, the petitioner. They will also investigate what the potential needs are, as well as any conflicts of interest. 

Contesting a proposed guardianship

If you are the individual in question or a third party concerned about a guardianship appointment, the process to contest is the same. If the initial guardianship case is still in process, the individual who is alleged to be incapacitated is required to be present during the hearing. Additionally, during the hearing, anyone who is a party to the petition is allowed to present evidence and call witnesses to testify.

Guardianship hearings are often long and complicated in cases where sudden illness or an event leaves someone unable to make decisions for themselves. The best way to avoid these cases for yourself or your loved ones is to have a plan set in place in advance. 

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