Rockland County Article 81 Guardianship Lawyer

There are few things more difficult than watching someone you care about lose the ability to safely manage his or her own affairs, whether because of dementia, a traumatic brain injury, a serious illness, or another condition. Unfortunately, for many people, there may come a time when a loved one can no longer make sound decisions regarding finances, medical care, or even basic daily needs, and when this happens, and when a power of attorney or another legal document is not available or no longer provides adequate protection, an Article 81 guardianship may become necessary. Continue reading and reach out to a seasoned Rockland County guardianship lawyer from The Law Office of Peter A. Hurwitz to learn more about how Article 81 guardianship works, and whether establishing one is right for your circumstances.

What Is an Article 81 Guardianship in New York?

An Article 81 guardianship is a legal proceeding established under Article 81 of the New York Mental Hygiene Law that allows a court to appoint someone to make certain decisions for an adult who can no longer adequately manage his or her personal needs or financial affairs.

That being said, under an Article 81 guardianship, courts are required to grant only those powers that are actually necessary based on the person’s specific circumstances. Simply put, the goal is to provide protection while allowing the individual to remain as independent as possible. Depending on the circumstances, a guardian may receive authority to do the following:

• Manage bank accounts and finances
• Pay bills and protect assets
• Apply for government benefits
• Make certain medical decisions
• Arrange housing or long-term care
• Hire caregivers
• Protect the person from financial exploitation

Who Needs an Article 81 Guardian?

Article 81 guardianship may be appropriate when someone can no longer safely manage personal needs or property and is likely to suffer harm without assistance. Some of the more common situations that lead families to pursue guardianship are as follows:

• Alzheimer’s disease
• Dementia
• Traumatic brain injuries
• Stroke-related cognitive impairment
• Serious mental illness
• Certain developmental disabilities
• Financial exploitation of a vulnerable adult

These guardianships are more far-reaching than powers of attorney, so people will only typically begin considering guardianship after noticing warning signs such as:

• Unpaid bills despite sufficient income
• Missed medications or medical appointments
• Unsafe living conditions
• Frequent confusion regarding finances
• Falling victim to scams or fraud
• Difficulty understanding important decisions

Before granting guardianship, however, the court will also consider whether a less restrictive alternative, such as a valid power of attorney or health care proxy, is available.

Who Can File for an Article 81 Guardianship?

The person who starts an Article 81 proceeding is known as the petitioner. In many cases, the petitioner is a spouse, adult child, sibling, or another concerned family member. However, New York law also allows certain other individuals to file a petition when the circumstances warrant it. Some examples of parties who may file are as follows:

• Family members
• Close friends
• Someone living with the individual
• Hospitals or nursing facilities
• Social service agencies
• Other individuals concerned with the person’s welfare

The petition must explain why guardianship is necessary, describe the person’s functional limitations, identify the powers being requested, and explain why less restrictive alternatives are not sufficient.

Generally speaking, the proceeding is filed in the county where the alleged incapacitated person resides or is present.

Who Can Be Appointed as Guardian?

The court’s primary concern is appointing someone who will act in the best interests of the incapacitated person, and while many guardians are family members, the court is not required to appoint the closest relative if another person is better suited for the role. A guardian may be:

• A spouse
• An adult child
• Another relative
• A close friend
• A qualified professional guardian
• A nonprofit organization in certain cases

Before making an appointment, the court may consider several factors, including the following:

• The person’s wishes
• The proposed guardian’s honesty and reliability
• The relationship between the parties
• Any conflicts of interest
• The guardian’s ability to carry out the required responsibilities

In some situations, the court may appoint separate guardians for personal needs and financial matters.

Once appointed, a guardian remains subject to court oversight and may be required to file reports concerning the person’s care and, when applicable, financial management.

How Does the Article 81 Guardianship Process Work?

No two cases are exactly the same, but the Article 81 guardianship process does follow a fairly predictable structure, which is as follows:

• A petition is filed. The petitioner files documents explaining why guardianship is necessary and identifies the authority being requested.
• Notice is provided. The alleged incapacitated person and other required individuals receive notice of the proceeding so they have an opportunity to participate.
• A court evaluator investigates the case. In most cases, the judge appoints an independent court evaluator to interview the parties, review the circumstances, and make recommendations.
• The court conducts a hearing. The petitioner presents evidence, witnesses may testify, and the alleged incapacitated person has the right to legal representation and the opportunity to respond.
• The judge makes a decision. If the legal requirements have been satisfied, the court appoints a guardian and clearly defines the guardian’s powers.
• The guardian qualifies for appointment. The guardian completes any required paperwork and satisfies any conditions imposed by the court before officially serving.
• The guardianship remains under court supervision. Guardians are expected to fulfill their responsibilities in accordance with the court’s order and comply with any required reporting obligations.

Contact a Rockland County Article 81 Guardianship Lawyer

We know that seeking an Article 81 guardianship is often an emotional decision, and not one you take lightly. Here at the Law Office of Peter A. Hurwitz, PLLC, we understand the full weight of the circumstances and will treat your case, and your loved one, with the utmost respect and dedication. Ultimately, this is about peace of mind, knowing your loved one is taken care of when they can no longer care for themselves, and we’re here to effectively guide you through each step of the process. Contact an experienced and compassionate Article 81 guardianship lawyer from our firm so we can discuss your circumstances.