New York Guardianship And Conservatorship Legal Questions

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. Since you are saying that your mother has dementia and does not have the mental capacity to sign a Power of Attorney, she would be considered an alleged incapacitated person. An Incapacitated Person (AIP) is someone who needs some help to care for themselves or manage their property or financial affairs. This kind of guardianship case is brought in Supreme Court or County Court under Article 81 of the Mental Hygiene Law. This type of proceeding is brought on by filing an Order to Show Cause and Petition. Generally, it is best if a lawyer handles this kind of guardianship case. You can contact the Supreme Court or County Court in your county for more information. Or you may want to contact an attorney who could handle the matter for you.... Read More

This is highly fact dependent.  To be placed under guardianship, someone must, due to a physical or mental condition, be unable to manage their finances or provide for their own food, shelter and medical care AND less restrictive alternatives, such as a Medical and Durable [Financial] Power of Attorney must be insufficient.  This typically occurs when someone who needs nursing home care refuses to enter a nursing home, when the DPOA agent is robbing the person, or when the DPOA is insufficient because the person is giving everything to charity, QVC or amazon.... Read More

The probate court documents are public.  Reading these should tell you what was left and give you the name of the attorney who handled the probate.  If he is not willing and able to move your grandmother, you might sue her for conversion (converting someone else's property to her own).... Read More

While your mother may grant a power of attorney, if her stroke has rendered her unable to manage her finances, a guardianship of the estate (conservatorship) is in order.  If her stroke has rendered her unable to make or communicate medical decisions, she may be able to make and communicate a decision as to who should make and communicate them for her, granting a medical power of attorney.  If not, a guardianship of the person is in order.  You may want to discuss this with an elder lawyer, with all the implications it has for applying for public benefits such as Medicaid.  You can find one near you on the website of the National Academy of Elder Law Attorneys (www.naela.org)... Read More

You might see whether the attorney is a member of the Special Needs Alliance or the National Academy of Elder Law and Special Needs Attorneys (NAELA).  You might check with the state bar to see whether there have been substantiated grievances (complaints) or disciplinary actions.  You might interview several attorneys and ask them who else they think could handle the matter.  You might ask fellow members of a group dedicated to helping people with your niece's condition and their families who they recommend.... Read More

Most states have a document, often called a Temporary Power of Attorney, by which both parents can appoint someone else to take children to the doctor, enroll them in school, etc. A different form must be signed by both parents giving consent for the children to leave the country.  They must also have passports and visas, plane tickets and an arrangement with the airline for unaccompanied minors. Talk to a local family law attorney.  If you cannot afford an attorney, contact Volunteer Legal Services.... Read More

In most states the adult can write a letter to the court asking the court to modify the guardianship.  The court will then appoint an attorney, sometimes called a guardian ad litem, to look into the matter.  Contact the court which awarded the guardianship to find out the procedure in your locale.... Read More

You need to have your brother fill out and sign a durable general power of attorney form before a notary public appointing you his attorney in fact IMMEDIATELY. This power can only be given when a person is alive and mentally competent and capable of designating someone to act on their behalf and dissipate their assets. Once you are appointed, as POA you must keep good records and ensure that his money is used only for his benefit or as he otherwise specifically designates. Although the POA will be in effect for his entire life until he revokes it, even if your brother becomes unable to communicate or make decisions, it must be signed while he is still capable of making such decisions. If he becomes incompetent to make decisions before a POA is signed, you CANNOT become his attorney in fact, and you must file a petition in court to be appointed guardian to act on his behalf. In such situation, you must have a doctor willing to sign an affidavit that your brother is not mentally competent.... Read More

You or your son (if he's 14 or older) must petition the court to appoint a guardian ad litem. You can request a specific attorney or ask the court to choose. You can certainly hire a lawyer to make this filing. The fees of a guardian ad litem are a fraction of what an attorney would charge.    You have no interest in your late girlfriend's estate unless she left you a bequest in her will, assuming there is a will. And unless your name is on the deed to the house or your girlfriend signed a promissory note for repayment of the money you invested in it, you have no claim against her estate to recoup that money, nor any ownership rights to the house.       ... Read More

You can file a petition for guardianship with the court and if the court feels it's warranted, it will send an investigator to the person's house to investigate and report to the court. The court may also appoint a lawyer for your relative. There will be a hearing at which you must present "clear and convincing" evidence of your relative's incompetency. If your allegations are found to be true, the court can appoint you guardian and give you authority in any or all areas, ranging from making health care and financial decisions, deciding whether the relative should be in a nursing home, applying for Medicaid on their behalf, hiring home health aides, requesting that bank accounts be frozen if they've been taken advantage of by dishonest people, etc.  If the person is under 65 and has assets, you may be able to set up a special needs trust to enable them to collect government benefits but still have use of their money.  But ultimately, there is no way to hide the fact that you are guardian and when you file your petition, all of your relatives close family members must be notified, as well. There is nothing secretive about this- just the opposite. While a court is not going to order you to personally supervise the cleaning of their apartment, if your intention is to avoid all contact with this person, you might not be the best person to file the petition.  ... Read More

This inquiry begs many more questions. You filed a petition for guardianship and lost, but after that, what prevented you from visiting your son over the past year?  A court order? Who IS your son's guardian, and where is your son residing? What communication have you had with your son and his guardian- does your son want to see you? Need much more information. ... Read More

I cannot tell you that you do not have to go to Surrogate Court, as in the absence of a 'guardian' listed on an account, a petition in Surrogate Court is usually required. However, where the other accounts list your wife, it may be worth additional efforts on your (and your wife's) part to persuade the bank that the account be deemed to have your wife listed. Gerry Wendrovsky, Esq. www.upperwestsidelawyer.com  ... Read More

You should seek out an elder law attorney. As guardian of your mother, the Office of Unclaimed Funds would be able to release the money to you; however, guardianship proceedings are time-consuming and expensive. An elder law attorney could help you determine if the funds are worth initiating guardianship proceedings or not.... Read More