Rockland County Contested Guardianship Lawyer

When a loved one begins having difficulty managing his or her personal needs, medical care, finances, or property, family members may understandably begin considering whether a guardianship is necessary. Unfortunately, not everyone involved will always agree on what should happen next, and when interested parties disagree as to whether a guardian is needed, who should serve as guardian, or how much authority that person should receive, the matter may quickly become contested. If you find yourself facing a contested guardianship, please don’t hesitate to contact a knowledgeable and skilled Rockland County guardianship lawyer from the Law Office of Peter A. Hurwitz, PLLC. We are here to aggressively represent you and your loved one’s interests, every step of the way.

What Is a Contested Guardianship?

Simply put, a contested guardianship is a guardianship proceeding in which one or more people object to some part of the petition. In many cases, the objection concerns whether the alleged incapacitated person, sometimes referred to as the AIP, actually requires a guardian in the first place.

That being said, the disagreement may also involve the identity of the proposed guardian, the authority that person should receive, or whether another arrangement could protect the AIP without taking away as much of his or her independence.

Most adult guardianships in New York are brought under Article 81 of the New York Mental Hygiene Law. Article 81 guardianships are intended to be geared toward the specific needs of the individual, which means the court should only grant the powers that are necessary based on the circumstances presented.

Once the matter becomes contested, the court will generally have to hear testimony, examine documents, consider the court evaluator’s report, and determine whether the requested guardianship is appropriate.

When Does a Guardianship Become Contested?

A guardianship becomes contested when an interested person formally objects to the petition or disputes an important issue involved in the proceeding. Rather obviously, these disputes can arise for many reasons, especially when family members have different opinions about the alleged incapacitated person’s health, abilities, finances, or living situation.

For example, one adult child may believe that an aging parent can no longer safely live alone, while another may believe that the parent remains capable of making decisions with some assistance. In other cases, everyone may agree that a guardian is needed, but they may strongly disagree about who should be appointed. A guardianship may also become contested when there are allegations involving the following:

• Financial exploitation
• Neglect or abuse
• Misuse of a power of attorney
• Undue influence
• Family members restricting access to the AIP
• Disputes over medical treatment or living arrangements

Who Can Contest a Guardianship Petition?

Several people may be entitled to participate in a guardianship proceeding, depending on their relationship to the alleged incapacitated person and the specific facts of the case. Those who may object can include the following parties:

• The alleged incapacitated person
• A spouse
• Adult children
• Parents
• Siblings
• Other close relatives
• Individuals who have a significant interest in the AIP’s welfare

In some cases, a person who holds a power of attorney, serves as health care agent, or has otherwise been involved in the AIP’s care may also seek to be heard.

The court will typically appoint a court evaluator as well, who is responsible for investigating the circumstances, interviewing relevant parties, reviewing records, and reporting his or her findings to the judge. Though the evaluator does not make the final decision, the evaluator’s report can certainly influence how the case proceeds.

Can the Alleged Incapacitated Person Object?

The answer to this question is “yes.” The alleged incapacitated person has the right to object to the guardianship petition, challenge the claim that he or she is incapacitated, and express preferences regarding who should or should not serve as guardian.

The AIP may also have the right to legal counsel, present evidence, call witnesses, cross-examine witnesses, and testify before the court. A diagnosis of dementia, cognitive impairment, mental illness, or another condition does not, on its own, automatically mean that a person requires a guardian.

Instead, the court must look at how the condition actually affects the person’s ability to manage personal needs or property. Furthermore, the judge must consider whether the person understands the consequences of his or her limitations and whether those limitations are likely to result in harm.

The main goal in these proceedings, at the end of the day, is to impose the least restrictive form of intervention that will adequately protect the individual.

Common Grounds for Contesting a Guardianship

There are several reasons why a person may contest a guardianship petition. Some of the most common grounds for an objection are as follows:

• The alleged incapacitated person can still make personal, medical, or financial decisions independently.
• The evidence presented does not establish incapacity.
• Less restrictive alternatives are already available.
• A valid power of attorney or health care proxy is in place.
• Family members or caregivers can provide sufficient assistance without a guardianship.
• The proposed guardian has a conflict of interest.
• The proposed guardian has mismanaged money or property.
• The proposed guardian has engaged in abuse, neglect, or financial exploitation.
• Another person is better qualified to serve.
• The petition requests more authority than is reasonably necessary.
• The information contained in the petition is inaccurate, incomplete, or misleading.

How Does a Judge Decide a Contested Guardianship?

There are several things a New York judge will consider before appointing a guardian. First, the petitioner generally must establish that the person is incapacitated under Article 81 and that the appointment is necessary to protect the person from harm. The court may review evidence involving the following:

• Medical records
• Cognitive or psychological evaluations
• Financial statements and banking records
• Testimony from relatives, caregivers, doctors, and other witnesses
• The court evaluator’s findings
• The AIP’s daily activities and functional limitations
• Existing powers of attorney, trusts, health care proxies, or support systems
• The qualifications and background of the proposed guardian
• The AIP’s own wishes and preferences

Rather importantly, the court is not supposed to focus only on a medical diagnosis. Instead, it must examine the person’s functional abilities, including whether he or she can understand and handle financial obligations, health care decisions, housing needs, personal safety, and other essential matters.

If the court determines that a guardian is necessary, it must then decide who should serve and what powers that person should receive. The guardian’s authority should be limited to the areas in which assistance is actually required.

Contact a Contested Guardianship Lawyer in Rockland County, NY Today

Ultimately, contested guardianship proceedings can be emotionally charged and, as the name implies, hotly-contested, as a lot hangs in the balance. That’s why, whether you are filing a petition, objecting to one, seeking to serve as guardian, or defending your own right to remain independent, you need a skilled and effective guardianship lawyer who can protect your rights throughout the contested guardianship proceedings. The Law Office of Peter A. Hurwitz, PLLC is here to help. Contact us for an initial consultation today so we can discuss your case.