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  • Nicole J. Zuvich

The value of a guardianship for an aging loved one

Updated: Sep 27

When you think about guardianship, maybe the first thing that comes to mind is guardianship of children in the event that their parents are no longer able to care for them (because of death, incapacitation, or some other reason). However, there is also guardianship over an older loved one who becomes incapacitated and is no longer able to provide for their own needs or make their own decisions.

If your loved one becomes incapacitated, you may be able to file a petition of guardianship with a New York court so that you are allowed to make important decisions on behalf of your loved one. In that case, it is sensible to consult a lawyer who is well versed in elder law and guardianships and who can help you to proceed in the best interests of your loved one.

The circumstances under which the court will appoint a guardian

The court will likely grant the petitioner guardianship if the elder is deemed incapacitated. Incapacitation means that the person is not able to fulfill their own needs, not able to handle their own property and/or financial matters, and does not understand why they are not able to manage their affairs.

Being incapacitated can take different forms in different people. An example is if a person has dementia and is unable to pay bills and eat on their own. Another example is a person who lives in unhealthy conditions (such as with bugs and garbage) and is unaware of those dangerous conditions. If a person is forgetful, that could be another sign of being incapacitated.

The petition process to appoint a guardian

For the petition, you will need to show why the allegedly incapacitate person, or AIP, is not able to function independently. Once you file the petition, an outside person will evaluate the AIP. The evaluator may be a lawyer, a physician, a nurse, a psychologist or a social worker. Once the evaluator completes their report, a judge will conduct a hearing.

If you become the guardian, the court will still give the incapacitated person as much independence as possible. You may be responsible for the person’s finances, paying bills, and supporting people who are financially dependent on the elder. You may also need to handle Medicaid eligibility concerns, paying taxes, and making sure that the elder has the proper medical and dental care. Your lawyer can guide you and is there to offer support when you need it.

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