Incapacitated Adult – Article 81
What Happens at a Guardianship Proceeding
You see the writing on the wall. Your dad won’t go to the bank anymore. And when he does go, he is not able to get his banking done. His bills are stacking up. He is also no longer able to easily make his own meals, go to the doctor, get dressed, or even go for a walk. You find yourself taking over his affairs, but unable to speak on his behalf because he was a stubborn man and never bothered to execute any financial or medical directives during his good years.
A friend recommends you get guardianship over your dad, like the friend did, some years back, when the same thing happened to his mom.
What is a guardianship proceeding, you wonder, and what happens at one?
In New York, an Article 81 guardianship proceeding is when an interested person requests that the Court allow somebody to make personal and financial decisions on behalf of an incapacitated individual.
The proceeding starts with the filing of some legal paperwork (in order to Show Cause, Petition, and supporting papers). The person who files the original legal paperwork is known as the petitioner. The Judge will sign the legal paperwork, and in signing it, the Judge will set a date for the hearing. The Judge will also appoint a Court Evaluator. Depending on the specific circumstances, the Judge may also appoint an attorney for the alleged incapacitated person.
The Court Evaluator, also informally known as the eyes and ears of the Court, will investigate the situation. The Court Evaluator will meet with the Petitioner, the alleged incapacitated person, and any other relevant and interested parties. The Court Evaluator’s goal is to render an objective opinion as to whether the person alleged to be incapacitated understands the nature and consequences of his or her actions.
The Court Evaluator determines whether the person can appreciate that they may be placing themselves at risk of harm; whether the person asking to be the guardian is an appropriate person for this position; whether the powers being asked for are the least restrictive; and whether there is a good care plan in place.
If anybody objects to the appointment of a guardian, they have an opportunity to file additional legal paperwork objecting to such appointment.
All of the parties convene at the courthouse at the date chosen by the Judge in the original paperwork in order to resolve whether a guardian is necessary. Typically, the hearing should take place within 28 days of the signing of the legal papers by the judge. At the hearing, the parties present evidence to establish the functional limitations of the alleged incapacitated person. If these limitations are established, and following the recommendations of the Court Evaluator, the Judge will typically appoint a guardian.
The guardian will have to perform certain ministerial duties prior to assuming their role. These duties may include attending a training class, obtaining a bond, obtaining a certificate. The guardian will also need to maintain accountability for their actions as guardian. This can be accomplished by filing initial and annual reports.