Long Island Guardianship Lawyers
A guardianship is a legal tool that allows a person or entity, known as the guardian, to make decisions on behalf of another person, referred to as the ward. Guardianships are often instituted when an individual cannot make informed decisions due to incapacity, illness, or disability.
This is often the case when a family member has dementia or late-stage Alzheimer’s Disease and loses mental ability, can no longer perform daily tasks, and can even become a danger to themselves.
Having an experienced lawyer is essential when seeking or contesting guardianship. At Schneider Garrastegui & Fedele PLLC, we can help you navigate the legal intricacies and advocate in court on your behalf. Our experienced team understands the legal process and can build a strong case for why the court should or should not grant guardianship.
Our Long Island guardianship attorneys can answer your questions and advise you about your case. Contact us online or at (631) 519-9831 for a consultation.
Types of Guardianships in New York
Judges in guardianship cases are responsible for protecting the rights and independence of individuals in guardianship cases while ensuring that they get the assistance they need based on their circumstances.
Thus, different types of guardianships may be awarded with varying degrees of authority given to guardians. In the case of elder law, these are based on the level of incapacity the ward may have.
Guardianships can include:
- Guardianship of the person involves the guardian making personal, healthcare, and welfare decisions for the ward. This type of guardianship applies when the ward cannot physically care for themselves or make sound healthcare decisions.
- Guardianship of the property gives the guardian the authority to manage the ward’s financial affairs. This includes making decisions about the ward’s income, assets, and financial investments. This type of guardianship is necessary when the ward cannot manage their financial affairs due to cognitive impairment or a lack of financial acumen.
- Guardianship of the person and property combines the responsibilities of the types above, granting the guardian the authority to make personal, healthcare, and financial decisions on behalf of the ward.
- Special limited guardianships are assigned when a ward can make some, but not all, decisions independently. The court specifies the areas where the guardian has decision-making power based on the ward’s abilities and needs.
How Courts Determine Guardianships
When deciding to award guardianship, courts consider several factors. Primarily, they assess the mental and physical condition of the ward based on medical reports and testimony. It is critical to evaluate the potential ward’s ability to care for themselves and their affairs and make personal and financial decisions. The court also considers the potential guardian’s ability to act in the ward’s best interests.
In terms of awarding a guardianship to an individual, courts will consider:
- Age and relationship: The proposed guardian must be over the age of 18 and must often have a familial or close relationship with the ward. Non-relatives can be appointed, such as an attorney or a corporation. However, courts generally prefer family members or close friends who demonstrate care and concern for the ward.
- Mental and physical capacity: The proposed guardian must be mentally and physically capable of looking after the ward. They should not suffer from illness or disability hindering their ability to serve effectively.
- No conflict of interest: The guardian’s interests must not conflict with those of the ward. If a potential guardian stands to gain financially or in any other personal way from the decision-making on behalf of the ward, the court is unlikely to appoint them.
- Financial responsibility: The guardian should demonstrate financial responsibility if they will be managing the ward’s finances. Past instances of bankruptcy or financial mismanagement may complicate the approval process.
- Background check: Courts usually conduct a background check on the potential guardian. A history of criminal activity, particularly if it includes elder abuse, fraud, or any violent crime, will likely disqualify an applicant.
- Best interests of the ward: The court will consider what is in the ward’s best interest. This may include the ward’s personal preferences, the potential guardian’s familiarity with the ward’s needs and wishes, and the potential for a positive relationship between the ward and the proposed guardian.
How to Establish Guardianship in New York
You must follow a series of steps to establish a guardianship in New York.
First, you need to file a petition with the Surrogate’s Court in the county where the ward resides. This petition should include medical evidence demonstrating the ward’s incapacity, reasons for seeking guardianship, and information about the proposed guardian.
After filing the petition, the court will assign a court evaluator to investigate the case. This evaluator will assess the ward’s condition and the appropriateness of the proposed guardian. Following this, a hearing will be held where the judge reviews the evaluator’s report, hears testimonies, and reviews any additional evidence.
Finally, the judge will decide whether to grant the guardianship, considering the ward’s best interests. This process can be complex and emotionally challenging, so having legal counsel is crucial.
How to Avoid the Need for Guardianship
You can avoid future guardianship as an older person through proper estate planning. This can be achieved by setting up legal documents that allow a trusted individual to make decisions on your behalf should you become incapacitated. You can avoid the expense and stress of guardianship court proceedings and ensure that your personal, healthcare, and financial preferences are documented beforehand.
Schneider Garrastegui & Fedele PLLC brings decades of experience in elder law and estate planning to the table. Our attorneys can guide you through comprehensive estate planning or the guardianship process, providing the counsel you need to ensure the best possible outcome.
You can trust our team to handle your case with the sensitivity, respect, and professionalism it deserves.
You can reach us online or at (631) 519-9831 to request a consultation with a Long Island guardianship attorney.
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