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Home > Blog > Estate Planning > Establishing a Guardianship

Establishing a Guardianship

There’s a tremendous value placed in our country on personal freedom and independence. As adults, each one of us has the right to decide for ourselves where and how we live, as well as how we choose to conduct our affairs. While others may not agree with our choices, there is often very little they can do other than to voice their opinions.

The law does provide remedies in cases where there are genuine questions as to our mental or physical abilities to conduct our own affairs or to ensure our own safety and wellbeing. In cases involving people who are incapacitated in such a way as to prevent them from making informed choices as to their own care and conduct, a guardian may be appointed. Getting a court order appointing a guardian for a loved one is often used as a last resort in ensuring they get the care they need, while their assets are protected.

What is a Guardianship?

A guardianship permits a person to make decisions, such as those regarding the personal needs and/or financial affairs and property management, that are in the best interests of an incapacitated adult. A court appointed guardian may be authorized to perform the following duties on behalf of their ward, or person they are appointed to act as guardian for:

  • Pay bills and authorize purchases;
  • Assist in estate planning and manage financial accounts;
  • Assist in Medicaid and tax planning;
  • Make decisions regarding health care and the need for services; and
  • Make recommendations to the court, in regards to the needs for nursing home or assisted living care.

Guardians are limited by their order of appointment in terms of what they are allowed to do and what kinds of decisions they are authorized to make. Guardians must answer to the judge who issued the order establishing the guardianship, as well as file regular reports with the court regarding the status of their ward’s physical, emotional, and financial well being.

How is a Guardianship Established?

Guardians are appointed under Article 81 of the New York Mental Hygiene Law. A proceeding to appoint a guardian begins with the filing of a petition with the court, outlining the need for a guardian to be appointed over a person, as well as clear and convincing evidence of the person’s incapacity. When determining incapacity in a guardianship hearing, the court will assess the following:

  • Management of activities in daily living;
  • Understanding and appreciation of the consequences of their actions;
  • The nature and extent of the person’s assets and their ability to manage them;
  • Physical or mental illness and conditions or disabilities which may prevent them from caring for themselves; and
  • Medications the person is taking, and the impact of the medication on the person’s thinking, judgment, or actions.

Contact Our Experienced Estate Planning Attorneys

Part of planning for the future involves planning for a time when we may not be able to make choices for ourselves, or manage our own affairs. At Cavallo & Cavallo, our experienced New York estate planning attorneys can help guide you through the options you have in terms of managing your health and finances, both now and in the years to come. Don’t hesitate to reach out to us today for help with your estate planning needs.

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