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Understanding guardianships, its powers and how to challenge them

In New York, guardianships can be critical to ensure that an elderly or incapacitated person is cared for. Some people have a durable power of attorney drafted so another person will be named as a guardian if the person is unable to care for themselves. Without a durable power of attorney, the court will appoint a guardian to represent that person. A disagreement sometimes arises as to whom the guardian should be and what can be done to change it. Understanding the powers a guardian has and how the guardian is chosen is a foundational aspect to issuing a challenge of the guardianship.

A guardian can oversee the care of the person, known as the ward. Decisions, such as how the finances and medical issues are handled, will be made by the guardian. Any services that the ward receives will be handled by the guardian. The guardian is also tasked with keeping the court apprised of the condition of the ward. This can include the living arrangements, mental and physical condition, and services the ward receives. The guardian is a caretaker but is not expected to care for the ward 24/7. A person who believes there is an issue with how any of this is being handled can seek to change the guardianship with the court.

The guardian is selected based on their qualifications to perform the inherent duties. The guardian must be a legal adult over the age of 18 and cannot have a felony or gross misdemeanor on their criminal record that would indicate that they are dishonest. In many instances, the ward is not able to decide on their own who to select as a guardian, and this can be the foundation for dispute among those who were in consideration to be the guardian or felt they should have been selected.

When there is no durable power of attorney, the courts can select a spouse, a parent, a son or daughter, or a sibling to make decisions. When there is a dispute, it is important to have legal assistance to try to change the guardianship. A legal professional experienced in estate litigation and guardianships can help those who are seeking to change a guardianship or have any other question related to the powers and how the person is chosen.

Source: FindLaw, "Guardianship of Incapacitated or Disabled Persons," accessed on March 27, 2018

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Weinstein & Randisi
290 Linden Oaks, Ste. 200
Rochester, NY 14625

Toll Free: 800-768-1780
Phone: 585-310-1578
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