Do you need to establish an Article 81 guardianship for a parent?

by | Feb 18, 2020 | Elder Law |

Caring for your parents in their later years can be emotionally difficult. Older adults can often display the same kind of stubbornness and single-minded focus seen in young children, particularly in cases involving cognitive decline due to Alzheimer’s or dementia. Your parents may make decisions that leave them and others vulnerable to devastating financial consequences, medical risk or physical injury.

Choosing to drive when one’s capacity to do so has already faltered, for example, could be incredibly dangerous for both the older adult and anyone they encounter on the road. Remaining in control of their finances when they can no longer recall their obligation to pay rent could also result in substantial problems. Once it becomes clear that your loved one can no longer provide for all of their own needs independently, it may be necessary for you to step up and become a guardian for them.

While many people associate guardianship with minor children or those with lifelong cognitive impairment, guardianships are also available to protect older adults experiencing cognitive decline or dementia as a result of aging or medical conditions.

Article 81 guardianship could apply in your case

Many older adults, even those in the throes of severe cognitive decline, are reticent to give up their rights and freedoms. They may worry that their loved ones will not act in their best interest, even if such a fear has no foundation in reality.

If your loved one does not agree to accept help and support where they need it, you, along with your siblings, may need to petition the courts for Article 81 guardianship. Provided that your loved one clearly struggles with cognitive functioning or providing care for themselves, the courts can empower a guardian, such as yourself or one of your siblings, to manage the decisions and affairs of the adult who can no longer do so on their own behalf.

The courts do an independent evaluation

In order to prevent abuses of Article 81 guardianships stemming from greed or institutional ageism, New York requires that the courts send out a trained court evaluator to speak with and investigate the older adult who would be subject to the guardianship.

This individual will make their own independent observations of the adult’s functioning capacity and relate to the courts whether they believe the guardianship is necessary. Their report helps guide the court in the establishment of a guardianship. Article 81 guardianships are often customized, and the report of the evaluator influences what powers the older adult retains and what duties the guardian can perform on their behalf.

The entire process is somewhat complex and can take time, which is why getting started sooner rather than later may be in your family’s best interests, particularly if your loved one has recently engaged in dangerous behaviors.