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  • Writer's pictureNicole J. Zuvich

When does the court have the power to order guardianships?

Updated: Sep 27, 2022

New Yorkers who are confronted with a situation in which a loved one needs protection and must have help to handle his or her personal needs may be unsure as to what their options are. Guardianships can sound daunting and the legal requirements to get one may appear complex. However, if the person is incapacitated, a guardianship might be the most viable option to shield them and ensure they get the care and attention they need. Knowing the law for a court’s power to appoint a guardian and the standards for appointment are imperative.

When can the court appoint a guardian?

People have basic needs including shelter, health care, safety, food, clothes and management of their affairs. If they cannot do it themselves due to an incapacitating issue whether that is old age, illness, an injury or a condition, then a guardianship might be the preferable alternative. The simplest way for a guardian to be appointed is if the person agrees to it. In other circumstances, the court will have an evaluator issue a report assessing the case. For a person to be declared incapacitated, there must be clear and convicting evidence that failure to have a guardian will likely cause harm.

The harm could arise because they person cannot address his or her own personal needs and property management; they cannot grasp their inability to oversee these things; and the person’s functionality is compromised. The needs themselves will be considered based on how arduous it is to manage them. For example, people who have a physical or mental issue that renders them incapable of making sure they have the proper medications and nutrition each day will presumably be harmed and could need protection of a guardian.

When considering a guardianship, having professional representation is crucial

Guardianships are a vast responsibility that cover some or all aspects of a person’s life. For elderly people, guardians are often adult children or other close relatives who can care for the person appropriately and with their best interests in mind. Still, there are challenges that inevitably arise and the person who will be under guardianship and the guardian must be aware of the process, the law and what it entails. For help, it is wise to have professional assistance from the beginning to ensure the law is followed and the goal of protecting an incapacitated loved one is achieved.

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