When an adult becomes incapacitated or disabled and is no longer capable of handling personal or financial affairs, a Guardianship can be established through a court proceeding so that a relative, friend, or in some cases an organization or attorney appointed by the court, can make decisions on behalf of the incapacitated or disabled individual.

A Guardian should only be appointed if a less restrictive alternative is unavailable. The execution of a thoroughly prepared power of attorney and living will with health care proxy by an elder law attorney can avoid the necessity of a guardianship proceeding.

Since the appointment of a Guardian limits the liberty and the privacy interests of an Alleged Incapacitated Person (AlP), it is vigilantly supervised by the courts A guardianship proceeding, under Article 81 of the Mental Hygiene Law, is commenced by the Order to Show Cause. A petition alleging the facts and circumstances would serve as basis for this to show that an individual needs a Guardian. A variety of persons interested in the welfare of an alleged incapacitated person can commence a proceeding.

A Guardian may be appointed under Mental Hygiene Law Article 81 if the alleged incapacitated person agrees, or if the court determines by clear and convincing evidence that person is incapacitated as defined by statute. In a guardianship proceeding, the court will usually appoint an attorney to represent the alleged incapacitated person unless the alleged incapacitated person has legal counsel of their choice and a Court Evaluator to investigate and report to the Court. The Court evaluator will interview the alleged incapacitated person, the petitioner, and any other interested parties. The Court evaluator may also examine the Alleged Incapacitated Person’s medical and financial records and review any legal documents, including a Will, Revocable Trust, Power of Attorney, and a Health Care Proxy.

In appointing an appropriate Guardian, the Court considers a number of factors and will give considerable weight to any prior written nomination of a Guardian made by the Alleged Incapacitated Person. The Guardian may be required to obtain a bond if required by court. The Guardian has certain duties, powers and obligations, including a duty to account to the Court and to take an educational course.

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Special Needs Planning

Special Needs Planning is imperative for those with special needs children or dependent adults. It brings great peace of mind to know that a loved one with a disability will receive care when a family member is no longer able to deliver it personally.

It includes both the decision making through the use of a Durable Power of Attorney and Health Care Proxy or through a guardianship. It also includes estate and benefit planning for the individual, often through the use of a Supplemental Needs Trust, which provides long-term financial support for children and adults who have a disability that prevents them from being self-sufficient.