What is Guardianship?
Guardianship of an adult with diminished mental capacity is known as a guardianship under Article 81 of the Mental Hygiene Law. Such guardianships (often involving seniors) are pursued in the New York State Supreme Court. We focus largely on this type of guardianship (and help prevent the need for it).
Guardianship of minors and of disabled individuals who do not have significant assets but otherwise require important surrogate decision-making are pursued in the New York State Surrogate’s Court.
New Jersey also has available guardianship laws and procedures.
When is a guardian needed and appointed?
Under New York law, guardianship should be used as a last resort. However, due to lack of individual planning (Advance Directives) and/or due to family strife, guardianship proceedings and appointments are necessary to sufficiently protect individuals who lack mental capacity. Sometimes contested guardianship matters among family members resemble “Pre Will Contests”.
The court will appoint a guardian upon a determination of incapacity, which requires clear and convincing evidence that a person is likely to suffer harm because: 1. the person is unable to provide for personal needs or unable to manage property and financial affairs; and 2. the person cannot adequately understand and appreciate the nature and consequences of such inability.
Personal Needs and Property Needs Guardian
Guardianship is sought because an individual cannot handle his or her own financial or personal matters. Depending on the level of incapacity determined by the court, the guardian will be given responsibility to oversee the property and personal needs decisions of the incapacitated person – this is a responsibility that requires limited training and annual reporting due to the court (both for financial needs and personal needs guardians).
The guardian makes important and ongoing decisions for the incapacitated person and steps into their shoes in making such decisions. A guardian with broad property needs authority can also engage in more extensive long-term planning, if necessary.
Of course, it is preferred that the proposed guardian be a close family member or friend, but the court will find someone to serve as guardian if there is no one else available.
A guardian may be appointed to protect incapacitated persons from abusive spouses, from telephone scammers, from abusive children, and from other types of theft and abuse.
Although guardianships are reserved for cases of last resort, it is important to speak with an attorney if you suspect someone you know is being taken advantage of due to their diminished mental capacity and is unaware of the situation they are in.