If you know someone who cannot manage their affairs and money, you may want to file a “petition for guardianship” over that person with the Surrogate’s Court to see if the court will find that the person is “incapacitated.” In guardianship cases, the word “incapacitated” means that a person:
- is unable to provide for their personal needs or unable to manage property and/or financial affairs; and
- cannot fully understand their inability to manage his or her affairs.
The following situations are examples of when someone may need a guardian:
- He is 90 years old and has moderate dementia. He is able to pay his bills and feed himself, but he lives in bad conditions—his apartment is bug-infested and littered with trash. He knows that it’s bad to live in these conditions, but does not seem aware that he is doing so.
- She is 62 years old and has had progressive Alzheimer’s for ten years. She lives on a pension, and keeps her living space neat. But she often forgets to eat or pay bills, even when she is given reminders to do these things.
- He is 74 years old and has mild Alzheimer’s. He is able to care for himself and pay bills, but he is becoming more and more depressed and afraid to leave the house.
Guardianship Petition Process
The person who you think needs a guardian is called the “alleged incapacitated person,” also called an “AIP.” You are called the “petitioner” when you file your petition and then called a “guardian” after you are appointed by the court.
The guardianship petition must include a description of the AIP’s inability to function. The judge then appoints an “independent evaluator” who will meet, interview, and consult with the AIP about the AIP’s condition and capacity to care for himself or herself. The independent evaluator can be a representative of a mental hygiene legal service, an attorney, a physician, a psychologist, an accountant, a social worker, or a nurse, chosen by the judge from a list of pre-approved people.
The independent evaluator then files with the court a written report including observations and recommendations. After that, the judge will have a hearing. The AIP will attend if possible. If the AIP does not want a guardian and does not have a lawyer, the judge will appoint a lawyer for the AIP.
During the hearing, both the petitioner and the AIP can bring evidence about the condition of the AIP. Sometimes, there is a jury trial on the issues that were brought up during the hearing, especially if the AIP does not want a guardian. The court will then decide whether to appoint you as guardian. When making its decision, the court will consider many factors.
The court will only appoint you as guardian if there is “clear and convincing evidence” of incapacity and the AIP is likely to suffer harm because of it. This generally means that you need to prove that it is more likely than not that the person is incapacitated. If the AIP has expressed a preference and asked for a particular guardian, the judge will generally agree.
The court is supposed to structure the guardianship so that it does not interfere more than necessary on the life of the incapacitated person. That person should be given as much independence as possible.
After being appointed as a guardian by the court, your duties might include:
- handling financial and other transactions
- transferring funds to pay bills or to support the person’s dependents
- dealing with Medicaid eligibility issues
- dealing with tax issues
- making reports to the court about the AIP’s condition and how you have handled the AIP’s money
- arranging for home care or a move to a nursing home; and/or
- arranging for medical and dental care
Legal Editor: Jill A. Kupferberg, March 2015
Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.