In an ideal situation, all competent adults would sign advanced directives such as a Durable Power of Attorney or Health Care Proxy well before it is needed. Doing so permits their choice of agent to make business and/or health care decisions in the case of incapacity. However, when an adult loses capacity due to an accident, sudden illness, mental illness, or dementia and there is no advanced directive in place, a family member may need to seek guardianship. The same holds for an individual who has a developmental disability and was never able to sign documents in the first place.
When a trusted family member or friend is appointed guardian, he or she becomes the legal decision maker. At Pierro, Connor & Strauss, our guardianship lawyers have experience helping clients living in Albany, New York City, and many other communities across the state with these matters. If you reach out to us, we’ll be more than happy to start going to work for you.
What is a guardianship?
A guardianship is a legal relationship in which one person is appointed by a court to make decisions for another person who is unable to act on their own behalf. The person appointed to make decisions is referred to as the guardian, while the person for whom they make decisions is known as the ward.
A guardian must be at least 18 years old, and a criminal record may be a disqualifier. The ward must lack the capacity to make their own decisions. This incapacity may be due to:
- Age when the ward is 17 years old or younger
- Incapacity such as caused by severe illness or injury
- Intellectual or developmental disability
Before appointing a guardian, a court will want to see proof of the alleged incapacitated person’s (AIP) incapacity. The court will appoint an evaluator and possibly an attorney to represent the proposed ward. The court will hear evidence regarding their condition and ability to make decisions. The proceedings often need to strike a delicate balance in the quest to obtain important information while respecting the alleged incapacitated person’s right to privacy.
