As parents age, their children often take on a bigger and bigger role in their lives. Many adult children help their elderly parents with household chores, yard work, and getting to and from medical appointments. However, some elderly parents need a greater level of care. They may be unable to make sound medical decisions or keep up with paying the bills, handle daily living activities, or provide for their own safety. When an elderly parent is incapacitated by dementia, Alzheimer's disease, or other health conditions, his or her child may wish to become that parent’s legal guardian.

Guardianship of an Adult in New York

Being a legal guardian is a major responsibility. An “Article 81 guardianship” gives the guardian the authority to make decisions on behalf of the incapacitated person. According to New York law, guardianship of an adult is granted when:

As a person reaches an advanced age, they may not always be able to fully manage their lives. Declining physical health can affect a person's ability to handle regular daily tasks such as preparing meals, housekeeping, and running errands. Some elderly people may also struggle to manage their financial affairs or make decisions about the best ways to use their assets to provide for themselves or their loved ones. These issues can affect other people as well, such as those who have suffered injuries or contracted illnesses that limit their physical or mental capabilities. In these situations, guardianship may be a way to ensure that someone else will be able to help manage a person's needs. However, a person may not be willing to completely give up control over their lives, and they and their loved ones may need to consider what options for guardianship may be available that will fit their situation.

Adult Guardianship in New York

The laws regarding guardianship differ from state to state. Some states offer multiple options that range from formal guardianship, which provides a guardian with complete control of all of a person's decisions, to limited guardianship, which allows a person to make certain decisions for themselves. However, in New York, only one type of adult guardianship is generally recognized. This is known as "Article 81 guardianship," since it is addressed in Article 81 of the New York Mental Hygiene Law.

Under Article 81, guardianship for an adult may be appropriate if the person is considered to be incapacitated, meaning that, first, they are unable to fully care for their own needs or address issues related to their property, and, second, because of this incapacity, they are likely to suffer harm. If someone seeks to obtain guardianship over a loved one, they may file a petition in court. If the intended ward does not agree to the guardianship, a judge may choose to appoint a guardian if they determine that the person cannot care for themselves and does not fully understand the consequences that are likely to affect them due to physical or mental health issues.

There are a variety of situations where family members may be concerned that a person is unable to fully meet their own needs. This may be an issue that a family will need to address when a loved one reaches an advanced age, or a person may be unable to care for themselves due to a serious injury or illness or a physical or intellectual disability. In these cases, another person may wish to establish guardianship for their loved one. When doing so, it is important to understand the procedures that will need to be followed and the requirements that will apply for a legal guardian.

When Is Adult Guardianship Appropriate?

A person may agree to have someone appointed as their legal guardian, or a family member or other party may file a petition in court asking to be appointed as the guardian of a person who is incapacitated. A person may be considered to be incapacitated if they are likely to suffer harm due to their inability to provide for their own personal needs and manage their property and finances, and they do not have the capacity to fully understand their lack of ability and the consequences that they may face because of these issues.

Guardianship Petitions and Hearings

A petition to establish guardianship may be filed by multiple parties, including the person who is allegedly incapacitated, a person’s presumptive heirs, someone who lives in the same household as a person, or others who are concerned with a person’s welfare. A petition must include identifying information about the allegedly incapacitated person, a description of their functional level, and the reasons they may suffer harm due to their inability to care for themselves. Prospective guardians will also need to outline the powers they are seeking, the amount of time they expect these powers to last, and any other information that may help the court make a decision about whether guardianship is appropriate.

In New York and throughout the United States, adults typically have the authority and responsibility to manage their own property and finances. However, in some cases, a New York court will appoint a legal guardian to manage another adult’s property. If you are struggling to manage your own finances, the thought of someone else stepping in to take control could be both a relief and a concern. You should be sure to understand your rights in an adult guardianship case, as well as what to expect if a guardian is appointed.

When is a Guardian Appointed for Property Management?

It is important to know that in New York, a guardian of property will not be appointed simply because someone is experiencing financial hardship. If you are struggling with debt or an impending foreclosure, for example, there are many steps you can take on your own with the help of an attorney in order to improve your situation, including pursuing a loan modification or filing for bankruptcy if necessary.

However, if you feel that you are truly incapable of managing your own financial affairs, perhaps because of a mental condition that impairs your understanding or decision-making, you may decide that a guardian of your property would be in your best interest. You have the right to petition the court to appoint a guardian of your choice, or to agree to a petition that someone else puts forth. On the other hand, if you do not agree to the appointment of a guardian, you have the right to hire an attorney and contest the appointment and the judgment of your incapacitation in court.

There may come a time in your life when you need to take over caring for one or both of your parents. It can be difficult and emotional to switch roles with the individual who took care of you your whole life, but unfortunately, it may be necessary to ensure that your parent receives the care he or she needs in his or her elder years. However, it can be a challenge to know the appropriate time to do this. You may not recognize your parent’s incapacity to care for himself or herself, or you may be putting off the decision because it is awkward and uncomfortable. Parents who need a guardian may not be on board with the process—seeing their child take care of them can be a difficult pill to swallow. Whether or not there is tension surrounding the decision to become your parent’s legal guardian, it is important to have a firm understanding of estate planning and what the role of guardian entails.

What Are the Responsibilities of a Guardian?

There are a number of different responsibilities that can be delegated to you as a legal guardian, either temporarily or permanently. A guardian is defined as a person, agency, or institution that is designated by the court to manage the affairs of another. There are different types of guardians, each of which has specific duties. Guardianships of the person are set in place for those individuals who need assistance with their physical care. These guardians will be in charge of decisions regarding comfort, medical care, education, and health.