When a person becomes incapacitated, and financial or health decisions need to be made, it may be necessary to have a guardian appointed for that person's protection and care. Many guardianship applications are undisputed, but sometimes families disagree about whether or not a guardian is necessary, or whether the person applying for guardianship should be appointed guardian. When a guardianship application is filed, the allegedly incapacitated person is usually referred to as an “AIP” (an allegedly incapacitated person). We represent people, who wish to have a guardianship established for an AIP. We also represent people who wish to oppose a particular guardianship application.
Under New York law, a hearing must occur before a guardian is appointed. Whenever a guardianship application is filed, the Court will appoint a Court Evaluator to make recommendations, as to the AIP’s need for a guardianship, and the fitness of the petitioner to serve as the Court-appointed Guardian. Sometimes, conflicts arise, as to whether the AIP is really incapacitated, and whether the petitioner is qualified to serve as the Court-appointed guardian. When this occurs, it can be difficult to decide what is in the AIP’s best interest.
A guardianship may not be needed, if the AIP has previously executed a valid Durable General Power of Attorney, which is accepted by the AIP’s financial institutions, and a valid Health Care Proxy. However, sometimes there are allegations that a Durable General Power of Attorney or Health Care Proxy has been abused. In other instances, there may be two or more Agents, who do not get along and are unable to make any joint decisions. When this occurs, the best solution may be to get the Court to void the existing power of attorney and proxy, and appoint a guardian to make all decisions on behalf of the AIP.
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