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Home > Blog > Asset Protection > When A Guardianship Is Necessary for An Older Adult

When A Guardianship Is Necessary for An Older Adult


Injuries and illnesses can happen at any age, but the impact these incidents can have tends to be more severe the older we get. When a loved one is incapacitated due to either physical, emotional, or cognitive impairments, appointing a guardian may be necessary for asset protection, as well as to help ensure their personal health and well being.

Appointing A Guardian In New York 

According to the New York Guide to Guardianship, issued by the state’s Office of Children and Family Services (OCFS), a guardian may be appointed for older adults with functional limitations which impair their ability to provide for themselves or to manage their personal or financial affairs. Rather than just assigning a guardian complete control over all areas of an incapacitated person’s life, the court aims at granting only those powers that individual is unable to competently handle on their own. This may include:

  • Authority to make medical decisions on their behalf, such as those involving necessary diagnostic tests and treatments, as well as those issues related to end of life care;
  • Authority to manage their affairs, such as having access to financial accounts and making decisions regarding their housing and day to day care;
  • Authority to manage assets and property, which includes making decisions regarding investments, stocks, and how assets are used, as well as decisions regarding the maintenance of any homes or personal property.

In order for a guardian to be appointed by the court, there must be clear, convincing evidence showing that the person in question lacks the ability to make informed decisions regarding their care or is unable to properly manage their own affairs. There must also be evidence that they fail to recognize or understand the effect their incapacity has on their abilities, and the potentially negative consequences that could occur as a result.

Challenges Faced In Establishing A Guardian For An Older Loved One

While the appointment of a guardian may be in an older loved one’s best interests, this does not mean that the process will necessarily be easy. Caring.com advises that while guardianship can help to ensure family members are involved in any major decisions and can protect the person’s estate and assets from being misused or squandered, there are areas of contention that can arise. These may include:

  • Disagreements among family members over who will act as a guardian;
  • Criticism and potential lawsuits over the way the estate or the person’s affairs are being managed;
  • The potential for the person to whom a guardian is being appointed to feel humiliated or betrayed, and to fight the appointment.

The need for a guardianship can be eliminated if the person in question established advance proper estate planning documents, such as a health care directive and powers of attorney, prior to becoming incapacitated.

Let Our Estate Planning Attorneys Guide You

Contact Cavallo & Cavallo for professional legal guidance if your family is facing these types of issues. Our New York asset protection attorneys can carefully review your situation and any existing legal documents, to advise you on the best course action.




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