Guardianship - A Last Resort | Cohen & Cohen Law Group, P.C.
Cohen & Cohen Law Group, P.C.
Call To Arrange A Free Case Evaluation

Guardianship - A Last Resort

In New York State, Guardians are only necessary when a person needs assistance with their Activities of Daily Living (managing their personal and financial affairs) and that person either consents to the Guardian being appointed, or the court finds them incapacitated and incapable of caring for themselves or consenting to the Guardian. Incapacity is only found when a person is unable or unwilling to provide for their own needs, when that person also cannot adequately understand or appreciate their inability to provide for those needs, and that person is likely to suffer harm as a result of being unable or unwilling to tend to those needs.

For instance, a person with Dementia or Alzheimer's disease would eventually, as their disease progresses, become unable to care for their own needs and, more than likely, become unable to recognize that not caring for those needs will result in harmful consequences. They would, then, in accordance with the New York statute, be considered legally incapacitated.

However, the court may not appoint a guardian for someone even if they are deemed incapacitated as long as there are already methods in place to prevent that person from actually suffering any harm. For instance, if the Alzheimer's patient already has Community Medicaid in place, is being tended to by home care aids, has a stable, loving, and supportive family environment, and already has agents working on their behalf under Property Powers of Attorney and Health Care Powers of Attorney, that person who would otherwise be incapable of caring for themselves would already have a system in place to prevent harm from coming to them. They would actually not then be considered "unable or unwilling to appreciate their inability," even if they no longer remember that they need the care to prevent harm, because, while they were able to appreciate it, they put a system in place to protect themselves from needing court interference in their life. Therefore, they would not, and should not, be found to need a Guardian.

Guardianship is a last resort method of caring for a loved one who otherwise cannot care for themself. This is why pre-planning/estate planning early is so important. Having your agents in place, and other elder law planning documents in place, allows you to age with dignity and autonomy, even when your body is working against you.

If you or a loved one are interested in learning more about the kind of pre-planning you can do to help prevent the need for an MHL Article 81 Guardianship and proceeding, please contact Cohen & Cohen Law Group, P.C. to speak with a knowledgeable Guardianship attorney. Call (718) 275-7779 today and get the information you need to feel more secure about your future!

No Comments

Leave a comment
Comment Information
Cohen & Cohen Law Group, P.C.

The PremierPersonal Injury
Law Firm In Queens

  • Super Lawyers Super Lawyers provides lawyer ratings of selected lawyers and helps you find the rated lawyer / attorneys in your location focused on all legal issues. No more than 2.5 percent are named to Rising Stars.
  • Avvo Rating This rating considers information the lawyer has included on their profile in addition to information collected from public sources. The Avvo Rating cannot be bought. Superb is the very highest rating.
  • American Academy of Estate Planning Attorneys Academy Members are among the most knowledgeable estate planners in the nation, in part because of stringent Continuing Legal Education requirements. They require 36 annual CLE credits in the areas of Estate Planning, Elder Law, Probate, or Trust Administration.
  • Million Dollar Advocates Forum The Million Dollar Advocates Forum is the most prestigious group of trial lawyers in the United States. Membership is limited to trial lawyers who have received million and multi-million dollar verdicts and settlements.
  • NYSTLA The New York State Trial Lawyers promotes a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers.
Email Us For A Response

Get The Focused Help You Need

Bold labels are required.

Contact Information

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.


Privacy Policy

Phone: 800-247-8164
Fax: 718-275-7722