New York Estate Planning & Elder Law Blog
Adult guardianship concerns the laws governing a person’s capacity to manage their own affairs and their own estate. The law presumes that a person possesses this capacity. Therefore, satisfying the legal criteria sufficient for a finding of incapacity is prerequisite to the formation of a guardianship.
Capacity
There is no single, universal definition of capacity. Often, the term “competency” is used interchangeably with capacity, though the modern trend is to prefer the latter. The meaning of the word derives from the context in which it is considered; it cannot be determined in the abstract. An individual’s capacity or incapacity generally must be determined in relation to his or her ability or inability to perform a specific function or act. Because an individual is capable of performing an astonishing number of different functions and acts, a person may have the capacity to do A, B, and C, but not X, Y, and Z. Further illustrating the complexity of the concept is the fact that capacity may be defined differently, depending on whether the context is legal, social, or medical. In terms of legal standards, a determination of incapacity requires clear and convincing evidence that a person is likely to suffer harm because:
1) the person is unable to provide for personal needs or unable to manage property and financial affairs; and 2) the person cannot adequately understand and appreciate the nature and consequences of such inability.
Guardianship
Following a legal determination of incapacity, a guardianship may be established. Guardianship is a legal relationship under which a person or agency (the guardian) is appointed by a court to make decisions on behalf of another person with respect to the person’s personal or financial affairs because the person, as the result of a physical or mental impairment, lacks the capacity necessary to make important decisions regarding his or her person, family, property, or finances.
Appointment of Guardian
In accordance with New York law, a court may appoint a guardian for a person if the determines that:
1) the appointment is necessary to provide for the personal needs or to manage the property and financial affairs of the person, or both, and;
2) the person agrees to the appointment or that the person is incapacitated.
An Example:
To better understand the basics of capacity and guardianship, it is useful to consider an example:
Alice has recently been diagnosed with Alzheimer’s disease, and is showing symptoms of sporadic confusion and disorientation. These symptoms are responsible for increased difficulty in managing her finances. Otherwise, Alice still has the ability to function in various aspects of her life. In considering Alice’s situation on the whole, a court would likely only grant limited powers to a guardian, but allow for the possibility of expanding the guardian’s powers via a modification order as the disease progresses.
If you or a loved one have questions or concerns regarding the guardianship process, be sure to contact a New York elder law estate planning lawyer with experience in dealing with these issues.
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