Guardianship of Incapacitated or Disabled Persons in New York


Caring for an elderly individual with Alzheimer’s can be challenging. Due to the degenerative nature of the condition, a person with Alzheimer’s may reach a point when they are no longer capable of making informed decisions about the assistance or care they need. If an individual becomes incapacitated and did not establish a Power of Attorney, his or her loved ones may seek to establish a guardianship through a court proceeding or have it granted by a judge.

Guardianships may grant individuals the legal right to make decisions for a parent or loved one suffering from Alzheimer’s or other forms of dementia. A guardian is given the same responsibilities that one may have when caring for a minor. Some of these can include ensuring that the loved one has a safe living situation, is free from financial exploitation and is able to receive the medical care he or she needs. The ultimate goal of the guardianship is to interfere as little as possible in order to facilitate the general independence of a loved one, but to a reasonable extent. The desires of the elder are put first and foremost, and they are encouraged to do as much of their own caregiving as is physically and mentally possible. Guardians are in no way expected to micromanage an individual’s entire life, since they are technically not providing caretaking services, but rather, assisting with decision making.

The courts will go to great lengths in order to make sure that a guardianship is not abused. During the proceeding, the family member must prove that their loved one is incapacitated and unable to make their own informed decisions, along with proving that they are able to adequately perform and carry out the tasks that the guardianship will entail.  In order to qualify to become a guardian, an individual must be a legal adult and cannot have been convicted of a felony or misdemeanor. The court chooses a guardian based on the wishes of the incapacitated, if he or she is able to do so on their own. If this is not the case, the court bases the decision on a durable power of attorney or will, if available. In most cases, a guardian is a family member, such as a spouse, parent or sibling.

If you are in a situation where you may need to initiate a guardianship proceeding, it is imperative to seek the consultation of an elder law attorney. The attorneys at Blodnick Fazio & Associates can assist you with creating a plan for your loved one that can ensure that his or her affairs are in order and their wishes are carried out. For a free consultation, call (516) 280-7105.

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