Making the decision to pursue guardianship over a parent is never an easy decision to make. It is, however, often a necessary decision to make in order to protect your parent from physical or mental injuries and/or neglect. The guardianship process itself can be fairly routine and relatively straightforward; however, if someone objects to the appointment of a guardian it can become contentious and complicated rather fast. If you are contemplating the pursuit of a New York guardianship it is in your best interest to plan for the possibility that someone will object to your petition for guardianship. The best way to plan for that possibility is to have an experienced New York elder law attorney on your side throughout the process. It may also help, however, to know what happens if someone objects to your New York guardianship petition.
What Is Guardianship?
Guardianship is a legal procedure in which a court determines that a person (referred to as a “incapacitated person” in New York) is incapable of making personal and/or financial decisions because of severe disabilities or incapacity, and that the person is in need of protection.
When Is Guardianship Appropriate?
Deciding when it is time to seek guardianship is a highly personal, and often times difficult, decisions to make. Because guardianship is considered the most restrictive option, the court is required to consider other, less restrictive, alternatives before agreeing to appoint a guardian. A court will only appoint a guardian is the court is convinced that “the appointment is necessary to provide for the personal needs or to manage the property and financial affairs of the person, or both, and (2) that the person agrees to the appointment or that the person is incapacitated.”
How Does a Court Define Incapacity?
Unless the alleged incapacitated person agrees to the guardianship, the court must find, by clear and convincing evidence, that the person is incapacitated. New York law allows a finding of incapacity if the evidence proves that the individual is at risk of suffering harm because:
- the person is unable to provide for personal needs or unable to manage property and financial affairs; and
- the person cannot adequately understand and appreciate the nature and consequences of such inability.
How Do I Petition for Guardianship?
As a general rule, a guardianship proceeding is filed in the county where the alleged incapacitated person is a resident or is where he/she is physically present. You will need to file a Petition for Guardianship that will need to include the reason(s) why you are alleging your parent is incapacitated. Supporting medical documentation may need to be filed with the petition. The law also requires you to notify certain people that the petition has been filed by serving them with a copy of the petition. Among the people must serve are:
- The Respondent (your parent)
- A spouse
- Adult children
- Close family members (such as adult siblings)
After you file the petition, the judge will appoint a court evaluator in most cases. The evaluator’s job is to investigate the allegations found in the petition, interview the alleged incapacitated person, and gather medical reports and evaluations that might help the judge make a decision.
What Happens If Someone Objects?
Anyone who is entitled to notice of the proceedings is also entitled to file a formal written objection to the appointment of a guardian. Once a formal written objection has been received by the court the judge will set the matter for a hearing. Your parent is entitled to have an attorney appointed if he/she cannot afford one. You should also have an attorney on your side for the hearing. At the hearing, both sides will have the opportunity to present testimony and evidence. You should have an expert (a physician) who will testify that your parent meets the legal definition of incapacity if you wish to convince the judge of the need for a Guardian. The judge will also take into account the report filed by the court evaluator. After hearing all the evidence and testimony, and reviewing the evaluator’s report, the judge will issue a ruling appointing a Guardian or denying the petition.
For more information on how to avoid a quardianship proceeding, contact the experienced elder law attorneys at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.