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Guardianships

A Guardianship is a legal proceeding whereby a person seeking the appointment of a Guardian (the Petitioner), submits an Order to show cause and petition to the Court, alleging that someone is in need of a Guardian (commonly referred to as an alleged incapacitated person—AIP).  His position is that that person is likely to suffer harm without such an appointment.  The Court does not require proof that the AIP is incompetent.  The AIP may even consent to such an appointment.  There is a hearing at which time all of those interested in the well being of the AIP may testify.  Generally, the Courts do not require medical testimony and the entire process should not take much longer than three months. The Court will tailor the Guardian’s powers to the needs of the AIP.  The Courts have made it very clear that a Guardian may be empowered to engage in estate and tax planning, including asset protection/Medicaid planning for the AIP.  A Guardianship may be for a limited period of time and for a limited purpose or it may be for an indefinite period of time.  At times, Guardianships are used for the sole purpose of establishing a Supplemental Needs Trust for the AIP and then we terminate the Guardianship.  A Guardianship must be terminated upon the death of the AIP. Although more than one person can be appointed Guardian, the Courts prefer to have only one person serve as Guardian.  The Courts are hesitant to appoint children who reside out of the state of New York.  Generally, a Guardianship training course, given by the local bar association, is a requirement to serve as Guardian. To receive a free copy of A Simple Guide to Understanding the Complexities of Elder Law – a helpful booklet we distribute to our clients which contains definitions and explanations of some important terms – please contact us.