New York Estate Planning & Elder Law Blog
As our parents age, it may become necessary to take on a some type of guardianship role to help them live out their golden years in comfort and dignity. Even highly functioning seniors can use a little help in certain areas to ensure their best interests are served and avoid costly mistake that can leave elders in financial and medical dire straits.
Under New York law, mentally competent seniors may willfully yield control over certain aspects of their lives to trusted friends or family to act in certain ways on their behalf. This is often referred to by the courts as the “least restrictive form of intervention” since it only gives the guardian limited power to help compensate for any limitations faced by the elder.
To achieve this type of guardianship, both parties (the elder and prospective guardian) will need to file their paperwork in the probate court where the elder lives. As long as the elder agrees and can demonstrate to the court why it is in his or her best interest to appoint a guardian, courts are generally inclined to allow this limited guardianship. Depending on the powers granted, the guardian can help their elder manage decisions related to medical care, financial management, and paying taxes.
On the other hand, it may be necessary to seek guardianship over an elder who is mentally incapacitated or can not otherwise make appropriate decisions for himself or herself. In these situations, it may be more difficult for someone to obtain total guardianship over their parent since courts are very hesitant to take away an individual’s freedoms in that respect.
When deciding whether or not to award an involuntary guardianship over another person, the court will examine several key factors in the individual’s life. Those considerations include the elder’s needs as the pertain to financial and property management, any medical or physical limitations faced by the elderly, and any prescriptions taken by the elder which may impair his or her decision making abilities.
Even elders that are clearly incapacitated have the right to obtain their own lawyers to defend against the court appointing a guardian over them and can request a trial. For this reason, it is best to talk to your older family member about these types of scenarios and put in place a plan of action in case there comes a day where a guardianship needs to be appointed.