Guardianship over Personal Affairs and Property: Not Just for the Incapacitated

Many of us can relate to growing concerns over loved ones as they continue to age and require more assistance. It can be challenging to meet these changing needs while still recognizing that our elderly loved ones are capable of performing some tasks on their own. It may seem obvious that legal remedies exist for those addressing extreme issues brought up by dementia and other forms of degenerative disease in elderly family members, who may entirely depend on a third party for assistance with daily life activities. What may not be as obvious is that those solutions are legally available to help address our elderly loved one’s needs without necessarily having them declared incompetent, while also enabling them to utilize a proper degree of autonomy.

New York Law
New York Mental Hygiene Law Article 81 was enacted to provide those seeking guardianship, and the Courts, the opportunity of using the least restrictive means of intervention in order to meet the specific personal or property management needs of the elderly individual while still maintaining an appropriate level of independence based on their capabilities. Specifically, Section 81.02(a)(2) of the Article provides that the Court may appoint a guardian to provide for the personal or financial needs of a person without having them declared incompetent, so long as that person agrees to the appointment. This becomes especially relevant in those situations where an individual is just starting to exhibit the first signs or symptoms of a degenerative disease affecting their mental capacity.

Consider a situation in which an elderly woman lives with her daughter. She has recently been diagnosed as being in the early stages of Alzheimer’s disease, and experiences intermittent memory loss and confusion. While her personal affairs have remained relatively unaffected, she requires assistance in managing her finances. Article 81 gives her the ability to enlist and agree to the assistance of her daughter in addressing her financial affairs while allowing her to remain independent in other personal matters, such as food, shelter, clothing, health care, and safety. Her current needs are being met without her rights being overly restricted, and it is accomplished without the added requirement of the Court finding her to be incompetent. In this way, the law enables the Court to consider the wishes of the elderly person in making a decision which preserves their independence and allows for their participation in the legal process which will affect their affairs. The Court can modify the powers of the guardian later, when the elderly woman’s needs change in the later stages of her disease.

It is important to note that there are many less restrictive alternatives to guardianship that the Court must consider before appointing a guardian in any case. Contact our elder law estate planning attorneys today to discuss your options in meeting the needs of a loved one, and to see if guardianship is the best alternative for you.

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