Avoiding Guardship in New York

For the ever-increasing number of those who become legally incapacitated later in life (i.e. unable to handle their legal and financial affairs) having a legal guardian appointed looms as a distinct possibility.

A guardianship proceeding may be commenced by a hospital, nursing home, assisted living residence, family member or a professional involved in the affairs of the "alleged incapacitated person" or "AIP". These proceedings arise for various reasons such as the facility looking to secure payment or a family member or professional finding that the AIP is either not handling their affairs well or is being taken advantage of financially.

Once the proceeding is commenced a vast bureaucratic process begins to unfold. Notice of the proceeding and of the date and location of any hearings are sent to all interested parties, including all immediate family members.

The court appoints a court evaluator to meet with the AIP, determine the nature and extent of the disability and write a report to the judge. The judge will also appoint a lawyer to represent the AIP in the proceeding and sometimes adult children will want their own lawyers to represent their interests.

The judge decides on who the legal guardian will be and it often ends up being a stranger to the family. Some judges feel that the AIP's children should not be guardian due to a conflict – that whatever they spend on the AIP is coming out of their inheritance. Other reasons for not choosing one of the AIP's adult children are sibling rivalry or inability to handle the responsibility.

Guardianship proceedings are expensive, time-consuming and highly stressful to all involved, including the AIP. Trusts avoid guardianship by providing privately who will handle your legal and financial affairs should you become legally incapacitated. Having a trust means you will have those in charge who you know and trust instead of the possibility of a court appointed stranger.

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