What people think they know: Frequently people come to me and say: Mom is not being rational, she is refusing to get an aide even though she keeps falling, she is refusing to go to a doctor, she is giving too much $ to charity, I want to get a guardianship and force her to take care of herself. What do you think? Do you think the above circumstances are sufficient to take someone’s legal rights away? 

Law for Guardianship: The New York Mental Hygiene Law provides a procedure for obtaining guardianship over an individual who is mentally incapacitated.  This is often used for elderly individuals who have no advance directives (i.e. power of attorney, health care proxy) in place, and have been diagnosed with dementia or some other cognitive deterioration which prevents them from managing their own personal needs or financial affairs.

However, the Courts do not take the decision to declare an individual incapacitated lightly. It must be clear that the individual lacks competency, cannot manage their own medical needs or manage their own property/finances without great risk, fails to understand their own limitations, and needs significant assistance with their activities of daily living. To learn more about guardianships, read this article which provides a more in-depth explanation of the guardianship proceeding.   

Guardianship process: Once a guardianship proceeding is commenced, the court will undertake an investigation into the alleged incapacitated person. Medical records and financial information will be reviewed, family members as well as the individual in question will be interviewed, and ultimately a hearing will be held during which the judge determines if the appointment of a guardian is warranted given the specific set of circumstances. To learn more about guardianships, read this article which provides a more in depth explanation of the guardianship proceeding.  

So, when is a guardianship proceeding NOT recommended?

Some clients come to us when they are struggling with a stubborn parent that is making poor health decisions, being generous with their money and refusing to execute any type of advance directives.  We can appreciate the frustration this can cause family members.  However, if their parent is competent, meaning they are oriented to place and time, they understand their health conditions and their financial assets, they know what they are doing and can appreciate the consequences of their decisions, a guardianship proceeding will not be an appropriate intervention.

In general – just because your loved one is making decisions that you vehemently disagree with – it does NOT necessarily mean that you can get a guardianship. Everyone above 18 is legally allowed to squander their money, to refuse medical treatment, to live independently and to marry an inappropriate person – but ONLY as long as that person understands the consequences of their actions. If Mom understands that by not having an aide she is danger and chooses to accept this danger anyway – she has the right to do so. If Mom understands that she can be left penniless by giving away too much $ to charity, but chooses to do so anyway – it’s her choice and she has the right to do so.  

Additionally, guardianships take time and cost a fair amount of money, so it is always best to try to avoid these proceedings.  We always recommend that our clients put advance directives in place which name agents to manage their financial affairs and health care decisions should there come a time they are unable to make decisions for themselves.  If these documents are in place, a guardianship proceeding will be unnecessary.  

Can you get a Power of Attorney if a Person is already incapacitated: Once a person loses competence it is too late to execute advance directives and a guardianship proceeding may be the only option.  As guardianships are a nuanced proceeding which many general practitioners do not have experience with, it’s recommended that you work with an experienced elder law attorney when filing for guardianship.

At Sverdlov Law, we have extensive experience with guardianship proceedings.  So, if you are struggling with a family member and are contemplating whether to file for guardianship, please reach out to us on 212-709-8112 or ksverdlov@sverdlovlaw.com or book a consultation here: https://calendly.com/katyasverdlov and we will be happy to assist you.