Guardianship legal services

When an individual becomes incapacitated due to illness, accident or advanced age and where there is no power of attorney and/or health care proxy, a guardianship case may be commenced in Supreme Court requesting that a judge delegate those powers to another person.  Ordinarily, a family member or friend retains our office to prepare a petition, as the petitioner, and other supporting documents requesting that the Court make a determination that an individual lacks the capacity to manage his own affairs and needs assistance.  What is capacity and how is it measured by the court?  Those are the tough questions, which present many challenges to the court.  The court looks to an individual’s capability of knowing and appreciating both the nature and consequences of his acts.  The court looks to whether the individual is likely to cause harm to himself or others.  Merely acting in an unconventional manner is not enough.

Judges analyze the claims and representations of the alleged incapacitated individual, the person bringing the guardianship who wants authority over that person, doctors, social workers, independent evaluators and also the attorneys involved.  Frequently, the judge conducts a long, contested hearing over many days-or even months-and, at times, if the judge grants the application she might not select the petitioner who commenced the case.  If the petitioner makes his case-and that is not easy-then that person would be appointed to serve as guardian to the incapacitated person.  That can be a difficult job, and subjects all involved to periodic scrutiny by the court.