Watching an elderly parent gradually lose their mobility or mental faculties is a painful process that can go on for a number of years. If an elderly loved one has a serious accident, becomes weaker from a crippling health condition, or experiences mental deterioration that makes them forgetful or vulnerable to financial exploitation, these can be signs that it is time for the adult children to get involved.
A guardianship provides an oversight role in the care of an incapacitated person’s health and wellbeing, which may include the supervision of their finances as well as arrangements for their personal care and living conditions. The guardian is court-appointed to make decisions on behalf of the incapacitated individual, who becomes their ward. In New York, there is no public guardian system, and so if there are no close family or friends who can serve as lay guardians, the court system relies on private guardianship organizations or attorneys to fulfill this role.
What types of guardianships are there?
While guardianships can also be for a child or developmentally disabled individual, an elderly person would fit into the category of an incapacitated person (AIP). When the court appoints a guardian, they may have guardianship over one or several conditions of their ward:
- A guardian of the person has the authority to make health care or welfare decisions
- A guardian of the property oversees the financial aspects of the ward, including the estate of the AIP, including their property, investments and savings, and is responsible for filing an annual report with the court
- A guardian of the person and property oversees the life decisions and property of the ward
- A guardian ad litem acts on behalf of the ward in court appearances to defend the API’s interests or rights when necessary
What are the qualifications for a lay guardian?
The guardian must have certain qualifications to serve. They must be an adult 18 years of age or older and must have a clean record with no felony or misdemeanor convictions. The court will appoint a guardian based on the wishes of the AIP, or if they are incapacitated, any documents prior to incapacity, such as a will or durable power of attorney, that name a guardian. The court will usually show a preference in choosing a family member, although the judge has the final say on the guardianship appointment.
Setting up a guardianship is a complicated process that involves a hearing with an independent evaluator to investigate the evidence of the alleged incapacity of the AIP. The petitioner filing for guardianship must prove with convincing evidence that the AIP is suffering from incapacity that may cause then harm. If the alleged AIP does not want a guardian, a lawyer will appear in court to represent them, chosen by the individual or the court.
Guardianship is not appropriate in every case, however, so it is important to understand what may be best for your family’s circumstances. For residents of Western New York, it makes sense to find out what planning options they have for the care and protection of their elderly loved ones when they are in need.