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When is guardianship possible in New York?

When New Yorkers are confronted with the reality that an elderly loved one is no longer fully capable of handling their own affairs, it might be necessary to consider a guardianship. While it might sound intimidating to think about guardianship elder law, the law is relatively straightforward. There are certain criteria that must be met, but, if it is in the best interests of senior citizens or anyone else who is unable to adequately care for themselves, it is wise to understand how it can be done.

It is possible for the court to appoint a guardian if it determines that the guardian is needed to care for the person with one or more of the following: clothing, shelter, health care, food, safety, managing property and financial affairs. The person must agree to the appointment unless they are deemed incapacitated. The court will have a court evaluator provide a report regarding these matters and the person's competency. The guardian will have powers that are needed to provide for the person's personal needs and management of property.

Incapacity will be determined if there is clear and convincing evidence that the person will likely be harmed due to: not being able to provide for their personal needs; and not being able to fully understand and assess the consequences and extent of their inability to do so. The court will consider the functional level and limitations of the person. Included will be: management of daily living; understanding and appreciating consequences of inability to manage daily living; the preferences and wishes regarding managing daily living; and the property and financial affairs and the person's ability to manage them.

The decision to seek a guardianship of a loved one might not be easy, but it is an important aspect of protecting loved ones regarding personal upkeep, medical care, finances and more. Having legal assistance from an attorney who is experienced in elder law can help to take the necessary steps and adhere to the law to get a guardianship and protect senior citizens and incapacitated people.

Source: FindLaw, "New York Consolidated Laws, Mental Hygiene Law - MHY § 81.02 Power to appoint a guardian of the person and/or property; standard for appointment," accessed on Jan. 2, 2018

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