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Guardianships A guardian can be appointed for someone when a judge concludes that the person is "incapacitated," the legal term describing an individual who needs help with at least some of the critical activities of everyday life. The Mental Hygiene Law states that a petition seeking the appointment of a guardian may be made by anyone "concerned with the welfare" of an individual. Although this concerned person is often a family member, it may also be a friend or a hospital where a person is being treated. After the petition is filed, a judge names a "court evaluator." This person, usually a lawyer, serves as the "eyes and the ears" of the judge to assess the person's needs. The evaluator must visit the person, explain what is happening, interview relatives, friends and anyone else who understands the person's needs, and prepare a detailed report for the court. A court hearing is held about a month later. The law encourages the person affected to be present if there is any prospect that he or she can "meaningfully participate." If court finds that the person has knowingly signed documents such as a power of attorney and a health care proxy, it may conclude that a guardianship is not needed. If none of these documents exist, the court asks whether the person is likely to suffer either financial or physical harm because he or she cannot manage finances or attend to personal needs such as eating regularly or obtaining medical treatment. Depending on what the evidence shows about the likelihood of harm, the judge then appoints a "guardian for property management" to administer the person's finances, a "guardian for personal needs" to make decisions about the individual's personal life, or a "guardian of the person and property" responsible for both finances and personal matters. At times, the court may appoint two separate guardians, one for finances and one for personal needs. Although the powers given by the court may be quite sweeping, the guardian must still allow the incapacitated person "the greatest amount of independence and self-determination" in light of the individual's "functional level," and "personal wishes, preferences and desires." Even if authorized to decide where the incapacitated person lives, the guardian cannot have the person transferred to a nursing home unless the court order specifically approved such a transfer. If the guardian concludes that the person should be in a nursing home, the guardian must go back to court for a separate order authorizing admission to a nursing home.
The use of the word "incapacitated" to describe the person who
needs a guardian dates back to 1993 when the guardianship law in New York
was changed. Until then, before someone could be made responsible for
an individual's personal needs, the court had to find that the individual
was "incompetent," a term with a stigma that suggested the individual
was totally incapable of managing any elements of his or her life. |
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