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Obtaining guardianship in New York

An estimated 30 percent of people aged 80 and older suffer from dementia and other forms of cognitive impairment. When a person is cognitively impaired, tasks such as following a recipe or paying monthly bills become difficult. Other signs of cognitive impairment include memory loss, failure to recognize familiar people or places and mood or behaviors changes.

In situations when a person is no longer able to care for himself or herself or manage their finances, a family member or loved one may wish to seek guardianship.

Article 81 highlights

New York State addresses guardianship of An Incapacitated Person (AIP) under Article 81 of New York's Mental Hygiene Law. Guardianship is generally appropriate for an individual who was competent in the past but now suffers from cognitive or functional impairments.

In cases where guardianship is granted, the court outlines what decisions the incapacitated person is allowed to make and what decisions the guardian will make. Each case is unique and decision-making powers will be tailored to the specific needs of the impaired person.

Determining who will be a guardian

New York has a broad stance on guardianship eligibility. Any suitable legal adult can become a guardian.

Typically, family members receive preference. However, when family members cannot reach an agreement, the court will appoint an independent guardian. A non-profit organization or public agency can also assume guardianship.

When making the appointment, the judge will consider the existing relationship between the incapacitated person and the proposed guardian. Other factors include the care and services being provided to the incapacitated person at the time of the proceedings and any unique requirements the impaired person has. The court will also evaluate any conflicts of interest between the incapacitated person and the proposed guardian.

The process for guardianship

A party requesting guardianship must file a petition outlining why it is necessary. The incapacitated person, a family member, a loved one, a resident of a care facility or any other person who is concerned about the person's welfare can file the petition.

Once filed, the court system may assign an attorney or a court evaluator to investigate the allegations. A hearing is generally scheduled to prove the appointment of a guardian is needed. The incapacitated person has a right to be present at the hearing.

Guardianship is awarded for the remainder of the incapacitated person's life. The court may be petitioned to terminate or modify the guardianship. Throughout the guardianship, the guardian must file regular reports detailing the incapacitated person's well-being and any expenditures. The guardian must also visit the incapacitated person at least four times each year.

The process of obtaining guardianship may the best step for protecting a loved one suffering from cognitive impairment. A guardianship can ensure their protection and safety when they can no longer care for themselves. 

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