What are my Guardianship Options for my Parents?

As our parents age, many of us begin to take on greater roles concerning basic needs like overseeing finances, medical care, and other tasks. Often times, some form of guardianship is necessary to ensure our loved one’s best interests are executed by financial institutions, hospitals, and even local governments. Even loved ones capable of handling many responsibilities themselves can use assistance from family members.


Fortunately, New York elder law gives family members the right to step in and request guardianship as well as allow competent elders the right to agree to guardianship and allow a family member to make certain decisions on their behalf. Whether you find yourself in either circumstance, an experienced and dedicated New York elder law attorney can help the process goes as smoothly as possible and your beloved elder has his or her needs met.


New York guardianship elder laws


Since 1993, the New York Mental Hygiene Law Article 81 has advocated for the rights of incapacitated elders by setting up guardianships to ensure his or her affairs are met. Additionally, the law requires courts consider alternatives to guardianship such as in-home nurses, aids, and other supervision to strike a balance between quality of life and elders maintaining an independent lifestyle.


Under the Mental Hygiene Law, guardians can be individuals 18-years or older or a public agency like the Adult Protective Services Program the Department of Social Services. Furthermore, the law focuses on the elder’s “functional level” of what sort of tasks he or she is able to perform, rather than the individual’s limitations.


How can I help my parent appoint me as a guardian?


While every individual’s situation is different, the ideal guardianship situation often involves the elder voluntarily ceding certain responsibilities to a relative or trusted caretaker to help manage important affairs like real estate, taxes, and medical care. Known as the “least restrictive form of intervention,” guardians retain the least amount of necessary powers to help elders compensate for certain limitations.


To set up a voluntary guardian, both parties can file notice with the court in their appropriate venue. So long as the elder agrees to the appointment and the guardian can clearly demonstrate cause for a guardianship, courts are more likely to grant the appointment.


What can I do if my parents are incapacitated?


Obtaining a guardianship in cases where elders are incapacitated due to medical conditions like dementia or alzheimer’s, securing guardianship over a beloved elder can be more complex. Under the law, courts will consider many factors of the elder’s situation, including:


  • Extent of the demands placed on the person by that person’s personal needs and property and financial affairs;
  • Physical illness, mental disability, alcoholism or substance dependence and the prognosis of such illness, disability or dependence
  • Any medications with which the person is being treated and their effect on the person’s behavior, cognition and judgment.


Furthermore, incapacitated elders have the right to their own legal counsel and may even seek a trial by jury to prevent being placed under guardianship. Individuals considering placing their elder family member under a guardianship should strongly consider retaining an experienced elder law attorney to help ensure their loved one’s best interests are considered by the courts.

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