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March 1, 2014

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

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. 

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