Finkel & Fernandez, LLP

If your loved one becomes incapacitated and proper personal and financial advance directives are not in place, a guardianship may be required. Article 81 of the Mental Hygiene Law governs the standard for the appointment of a guardian in New York.

The action is commenced by the attorney for the party bringing the action [the petitioner] filing a Guardianship Petition and Order to Show Cause in court. The petitioner may be a concerned family member, neighbor, friend, Adult Protective Services, or any other interested party. The petition states the reasons why a guardianship is required and the specific relief sought. Once the Order to Show Cause is signed by the judge, a hearing date will be set [within 28 days of the signing of the order] and most often, a court evaluator and or court appointed attorney for the “alleged incapacitated person” or “AIP” will be appointed. At the hearing, the petitioner has the burden of proving to the court, by clear and convincing evidence, that a guardian is needed and what powers the guardian should have. Powers may be sought for personal and or financial management. The petitioner may request to be the guardian, or may make another suggestion to the court, which the court will consider but not be bound by. The court evaluator, if appointed, will investigate all claims in the petition and report to the court his/her recommendation, using the “best interests” of the AIP standard.

In making its determination as to whether or not to appoint a guardian, the powers the guardian shall be granted, and who the guardian shall be, the court must balance the facts before it with the wishes of the AIP. The guardianship court must strive to provide appropriate relief to meet the needs of the AIP, considering the AIP’s personal wishes, preferences, desires and beliefs. If a guardianship is granted, the AIP should be allowed to maintain the greatest amount of independence, self determination and participation in all of the decisions affecting his/her life as possible. The court is bound by the law to follow the “least restrictive alternative” standard to meet the needs of the incapacitated person. If a guardianship is granted, the Court must carefully tailor the guardianship order to the particular needs of the incapacitated person. Only the powers specifically granted to the guardian may be exercised by the guardian. Under the least restrictive alternative standard, if properly executed advance directives are in place, or can be put in place, the need for a guardian is often eliminated. All too often, however, the guardianship action arises when the person has lost capacity and does not have the advance planning in place, necessitating the guardianship process.

It is important in bringing a guardianship action that the elder care attorney you hire is well versed in the specific field of guardianship. Ask the attorney what experience he/she has had in representing the petitioner [bringing guardianship actions], defending guardianship actions, whether he/she has served as a court appointee [evaluator] and if so, how many times and over what span of time. If you have questions regarding bringing or defending a guardianship action, contact Fern J. Finkel or Julie Stoil Fernandez at Finkel & Fernandez, LLP
16 Court Street, Suite 1007, Brooklyn, New York 11241, 347-296-8200 (telephone), 718-965-3185 (fax), ffinkel@ffelderlaw.com, jstoilfernandez@ffelderlaw.com.