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March 1, 2014

From the Office: Laws work to help protect those in need of guardianship

By Wayne Shepard
The Daily Star

---- — Sometimes individuals cannot care for themselves. In New York, guardianship laws exist to empower others to take care of children and adults who need help to care for themselves and or their property. This is the second of a two-part column that explores the issues and the law of guardianship in New York state. 

These matters can be complex and the law is extremely detailed. This column is not intended to be a complete discussion of every circumstance that may arise or all aspects of the laws that apply. Please seek legal assistance to find out how the law applies to your specific situation. Referrals for free legal services for people older than 60 re available from the Office for the Aging in the county in which the senior resides. In Delaware County, the telephone number is 746-6333; in Otsego County, 547-4232.

This portion of the column will focus on guardianships under Article 81 of the Mental Hygiene Law. As noted in the first part, when people turn 18, they are legally independent of any control of parents or court orders that may have applied to custody or visitation. However, due either to accident (resulting, for example, in traumatic brain injury) or to aging (which might lead, for example, to dementia), individuals can become incapacitated and require the assistance of others in meeting their daily personal and financial needs. Typically, these types of guardianships are sought by parents of adult children (where the incapacity arose after the age of 22) or by spouses or children of an elderly person. 

Each individual’s capacity to make decisions about how to live his life is presumed and can only be overcome by a judge’s finding by clear and convincing evidence that he is likely to suffer harm because he is unable to meet his personal and property needs and that he cannot adequately understand and appreciate his situation. Because a court will not impose a guardianship unless it is the least restrictive alternative to meet an incapacitated person’s unmet needs, any person seeking to establish a guardianship should investigate all available resources in the community that could be relied upon to assist with the needs of the incapacitated person. 

These resources can include nursing and home health services, adult protective services, representative payee services, as well as the utilization of advance directives such as powers of attorney and health care proxies. It is important to remember that advance directives must be signed while a person has the legal capacity to do so. Particularly, in cases of limitations due to aging, it is possible for a person to execute a power of attorney or health care proxy even after she has been experiencing some impact from the onset of dementia or other debilitating condition, so long as the document is signed during a period of awareness. If the condition proceeds too far, however, it may be impossible for an attorney to ethically prepare an advance directive because the person may no longer have the legal capacity to understand the nature of the document. Also, if the guardianship process has already begun, any advance directive that is executed may be set aside by the court. 

An Article 81 guardianship proceeding must be filed in the Surrogate’s Court. At the beginning of the guardianship process, the court will appoint an evaluator who has numerous responsibilities that include meeting with the alleged incapacitated person, or AIP, and making recommendations and submitting written reports to the court. The evaluator may also take independent steps to preserve the AIP’s property from being misappropriated, destroyed or lost. 

However, any act of this type must be reported to the court. The AIP may consent to a guardianship, but if she will not or cannot consent, the court will hold a hearing to decide whether a guardianship is necessary under the circumstances. The AIP has numerous rights, including the right to an attorney of her own choosing, and if she cannot afford an attorney, she has the right to have the court appoint an attorney for her (at this point the evaluator will be discharged). 

She also has the right to be present at any hearing. If her limitations mean that she cannot be present in the courtroom, the court must conduct the hearing at the AIP’s residence. The purpose is to permit the AIP to participate in the proceeding and to permit the judge to independently evaluate the AIP rather than relying only on the testimony of lay and expert witnesses. 

If the court determines that a guardianship is necessary, it must craft a guardianship that is narrowly tailored to meet the needs of the incapacitated person, or IP. However, for the guardian, establishing the guardianship is only the beginning. 

The law requires that guardians undergo training (although it may be waived). The guardian must take an oath. The guardian must act in a manner that reflects the trust and loyalty required, which demands that the guardian always act in a manner that takes into account the IP’s preferences or is in the IP’s best interests if those preferences cannot be determined. The guardian must also file annual reports with the court and, in the event the guardianship ends for any reason, a final report. If the guardian is not discharging his or her duties properly, a request can be made to the court to remove the guardian.

Ultimately, it is important to remember that the purpose of a guardianship is to assist the incapacitated person and in doing so, the guardian should afford him as much independence and self-direction as can be managed given the IP’s limitations and his understanding of those limits. 

If you believe that someone you know is in need of a guardianship and you are willing to assist that person, consultation with an attorney relating to the issues surrounding guardianship is always wise. An attorney can assist in pre-guardianship planning and also in the preparation of the papers needed to be filed to apply to the court. For those who are going to try to go it alone, there are forms and information available on the unified court system Web page.

Wayne Shepard is director of the Delaware County Office for the Aging. ‘Senior Scene’ columns can be found at