Article 81 of New York’s Mental Hygiene Law allows the court to appoint a guardian, to make decisions regarding someone’s personal needs and/or property. Before the court makes the decision, you have to prove that the adult isn’t capable of making decisions because of a physical and/ or mental deficiency. Article 81 also requires that anyone petitioning the court for guardianship meet eligibility guidelines. For instance, if you are an executor or trustee over the person’s estate, live in the same residence, or are concerned with the person’s welfare -- you can seek adult guardianship.
Decide the type of guardianship you’re seeking. If you’re seeking guardianship over personal needs, then you can make decisions regarding the person’s health. Guardianship over property entails making decisions about finances.
Complete documents to show cause. You must submit a petition to the court which includes five categories of information. You must explain: the person’s functional level, reason for guardianship, alternative resources explored and the proposed guardian’s name — and why you are the right person for the responsibility.
File the petition with the local New York Supreme Court. You have to file the petition in the county where the person lives. The court will assign a court evaluator to help determine if the adult needs a guardian. The evaluator will meet, interview and consult with the individual to determine if he understands English, wants a lawyer and comprehends what is occurring.
Attend the hearing. Typically, the court sets a hearing 28 days from the date when the order to show cause was signed.
Seeking guardianship shouldn’t be your first options. The court expects you to seek alternatives to the guardianship and list them in your petition. Alternative resources include hiring a home health aide or visiting nurse, enrolling the individual in adult daycare or seeking power of attorney.
If you receive guardianship, the court expects a report regarding the decisions you make for the adult. The report typically includes a detailed account of how money was spent or decisions such as medical care were made.
Obtaining guardianship isn’t automatic. The individual has the right hire counsel to stop the petition and convince a judge guardianship isn’t needed. If a judge agrees, the petition will be denied.
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