If you find yourself worrying about your mother’s ability to safely care for herself or about her ability to handle her affairs, it may be time to consider guardianship. Like many adult children, you may be resistant to the idea of petitioning to become your mother’s Guardian because it feels as though you are taking away her independence. Keep in mind, however, that failing to pursue guardianship could place your mother at increased risk for serious injury or victimization by predators who prey on the elderly. A Rochester elder law attorney at the Law Office of Michael Robinson, P.C. explains the process required to become your mother’s legal guardian.
What Is Guardianship?
Guardianship is a legal relationship created by order of a court whereby an individual or organization (the “Guardian”) is granted the legal authority to make personal decisions for someone (the “Ward”), and/or to control the estate of someone who has been determined to be disabled or incompetent by a court and, therefore, in need of a Guardian. If appointed Guardian of the person, you would have authority to things such as decide who will care for the Ward, access and release medical records, or apply for government benefits for the Ward. As Guardian of the estate you might have the authority to manage the Ward’s property and investments, pay bills, and/or enter into contracts in the Ward’s name.
What Is Involved in the Guardianship Process?
In the State of New York, one option in the guardianship process is for the proposed Ward to agree to the appointment of a guardian. If the proposed ward does not, or cannot, agree, you must petition the appropriate court and convince the judge that a guardian is necessary. Guardianship is considered the most restrictive option when an adult needs assistance. As such, it is also thought of as the option of last resort. In the petition you file with the court you must explain why the proposed ward needs a guardian. You are also required to officially serve the proposed ward (in this case your mother) as well as close family members with a copy of the petition. This requirement is in place to ensure that interested parties are given the opportunity to object to the appointment of a guardian. If anyone does object, they must file an official objection with the court. The court will set the matter for a hearing at which you must prove to the court that the proposed ward is incapacitated. In the State of New York, a determination of incapacity requires clear and convincing evidence that a person is likely to suffer harm because:
- the person is unable to provide for personal needs or unable to manage property and financial affairs; and
- the person cannot adequately understand and appreciate the nature and consequences of such inability.
The court will likely order an independent examination as well as considering evidence you present at a hearing. If the proposed ward (your mother), or anyone else entitled to notice of the hearing, objects to the appointment of a guardian they are also entitled to present evidence and/or testimony at the hearing. The judge will take all evidence, testimony, and reports into consideration when deciding whether or not a guardian is needed. If the court feels a guardian is warranted, the court will decide which type is necessary and what authority the guardian will have. Finally, the court will decide if you are an appropriate person to name as the proposed ward’s guardian.
Although you are not legally required to be represented by an attorney when you petition for guardianship, it is wise to have an experienced attorney on your side to help you navigate the often confusion legal system.
Contact a Rochester Elder Law Attorney
For more information, please join us for an upcoming FREE seminar. If you have additional questions about guardianship in the State of New York, contact a Rochester elder law attorney at the Law Office of Michael Robinson, P.C. by calling 585-374-5210 to schedule an appointment.