Adult Guardianship & Legal Guardianship of Disabled Adults

Helping New Yorkers Access Legal Tools for Adult Guardianship Planning

An adult guardianship can form an effective legal tool that family members use to protect adults with special needs. But adult guardianships are not appropriate for every situation, and other legal tools may form a more appropriate means of meeting a family’s goals. Other family members and friends with legal standing to do so can also challenge adult guardianships. By accessing the legal advice of an experienced guardianship attorney, New York families can use the right legal tools for adults with special needs, and protect their guardianships from legal challenges. The highly skilled attorneys at Goldfarb Abrandt Salzman & Kutzin have decades of experience in connecting New Yorkers with the legal tools they need to enact effective and binding adult guardianships.

How an Adult Guardianship is Obtained

Adult guardianships are used to assist incapacitated adults who are unable to care for themselves or need assistance to manage their property or financial affairs. Guardianship cases are brought under Article 81 of the New York Mental Hygiene Law.

Article 81 was designed by the state legislature to provide flexibility in meeting the needs of incapacitated adults. Not all incapacitated adults need assistance in meeting all their needs. Some only need assistance with property management, or with paying bills, or with making medical decisions. Article 81 is very clear about identifying only those areas in which the adult needs assistance. Guardians are given only the authority necessary to meet the specific needs of the incapacitated adult. In this manner, adults with special needs are still able to retain control over their decisions where they have the ability to do so.

Any person older than 18 years old can serve as a guardian. So can a corporation or public agency, such as a local social services department.

The incapacitated person can initiate a guardianship case. The executor of an estate or trustee of a trust from which that person may benefit may also bring a guardianship case. The CEO of a care facility in which the person is a patient or resident may also bring such an action. Finally, there is a broad provision that allows “anyone who is concerned with the welfare” of the person who is alleged to be incapacitated to bring guardianship cases.

Once the guardianship petition is filed with the court, a hearing is set to determine whether the alleged incapacitated person (AIP) is, in fact, incapacitated. Notice of this hearing must be sent to the AIP, her attorney (if the petitioner knows the adult has an attorney), and the court-appointed evaluator. Notice must also be served upon the AIP’s spouse, if she is married, as well as the AIP’s parents, adult siblings, or adult children, if they are living. If none of these relatives are living, the petition must serve notice upon at least one living relative whom the petitioner knows.

Certain other non-relatives are also entitled to notice. This includes a person with whom the AIP resides, the facility at which she lives, and any organization with a genuine interest in promoting the best interests of the AIP.

Once the case is initiated and a hearing is held, Article 81 sets specific findings a court must make to establish an adult guardianship. First, the court must find that the AIP either consents to the guardianship, or meets the legal definition of incapacity. This requires a report from a court evaluator (appointed by the court), and the court can use this report to determine whether the adult is incapacitated. Incapacity must be proven by clear and convincing evidence. This is higher than the “preponderance of the evidence” standard used in civil cases, and just below the strict “beyond a reasonable doubt” standard used in criminal cases. This means that a family member seeking an adult guardianship has a high burden of proof to establish an incapacity. In finding an incapacity, the court must determine that the person is likely to suffer harm because she is unable to provide for personal needs or property management, and because she is unable to understand and appreciate the consequences of the inability.

Next, the court must determine that a guardian is necessary to provide for the personal needs of the incapacitated person (IP). This includes food, clothing, shelter, health care, safety, or financial needs.

How an Attorney Can Help Challenge an Improper Guardianship, or Protect Your Guardianship From Challenges

If the court makes the requisite findings and appoints a guardian, the case is not necessarily closed. A court can also remove, discharge, or modify the powers of a guardian when appropriate. Thus, family or friends who believe a guardian is not acting in the best interests of an IP have an opportunity to challenge the guardian’s authority. This is good news for those who are concerned about how a guardian exercises authority. This is also helpful for challenging improperly ordered guardianships. It can, however, frustrate guardians who are genuinely acting in the best interests of the IP. Legal challenges to a guardianship can require significant investments of time and money that would be better spent serving the needs of the adult.

In all of these situations, a New York guardianship attorney can help you present the strongest possible case for or against a guardianship. This experience will allow you to find the evidence and make the arguments that will most persuade a probate court judge.

Get the Counsel of a New York Guardianship Attorney

Whether you are seeking, challenging, or defending a guardianship, or seeking to modify a guardian’s authority, a New York adult guardianship attorney can help you navigate the complicated guardianship process. The skilled guardianship attorneys at Goldfarb Abrandt Salzman & Kutzin have decades of experience in seeking, challenging, and defending adult guardianships. They will work with you and your loved ones to find the best legal tools to help adults with special needs. Call (212) 387-8400 or write to us today to schedule your consultation.

If an adult cannot manage his/her personal and/or financial affairs, a court can appoint a guardian for that person. Guardianship cases can involve, among other things: the failure or inability of a person to pay bills; financial abuse; self-neglect; physical abuse; Medicaid planning and tax planning. Goldfarb Abrandt Salzman & Kutzin attorneys can assist you with these kinds of cases.

Goldfarb Abrandt & Salzman LLP attorneys can also provide you with assistance with regard to proceedings that occur after a guardian has been appointed.

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