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An Article 81 Guardianship proceeding may be needed if a senior suffering from dementia did not engage in estate planning and no longer has the capacity to do so. It is important to note that just because someone is diagnosed with dementia does not automatically mean that they do not have the capacity to execute the advance directives needed to designate a trusted friend or family member to help manage their personal and financial needs. The decision of whether or not someone has the requisite capacity should be made by an attorney who has experience in Elder Law.
Capacity, Guardianship, and the Mental Hygiene Law
Unfortunately, if the dementia has progressed to a point where the senior does not have a thorough understanding of what he or she was signing, the only option is to make an application to the court in the county in which the person resides to be appointed as guardian of the person and property, pursuant to Article 81 of the Mental Hygiene Law. This involves filing of a petition with the court in support of the position that the “alleged incapacitated person” is incapacitated, does not fully understand or appreciate his or her lack of capacity and, therefore, is likely to suffer harm if the petitioner (or a third party) is not appointed as guardian.
Petitioning for Article 81 Guardianship
Once the petition is filed, the Court will set a date for the hearing and notify all interested parties such as children, if any, and siblings, if living. Those parties would have the opportunity to come to Court and object to the proceeding, or to allege why someone else should be appointed as guardian. The Court will also appoint a Court Evaluator, usually a local attorney experienced in this field, who will visit with your father and interview you, your siblings, and any other interested parties. The Court Evaluator can review the finances, if relevant to the case, and can even review medical records, under certain circumstances. At the hearing, the Court Evaluator will present a written report and will testify as to his or her findings of fact and recommendations. Ultimately, after hearing all the evidence, the Court will determine if a guardian is needed, what powers the guardian will have and if you are the right person to act as the guardian.
Once a guardian is appointed, that person will have to undergo court-directed training to become certified. In addition, a guardian will have to maintain financial records and may be called upon to submit an accounting. In some cases, the Court will require that the guardian obtain a bond equivalent to the incapacitated person’s assets.
Estate Planning for Advance Directives Is Important
Regrettably, guardianship proceedings for those suffering from dementia are a sad reminder of the importance of having advance directives in place. Seek the advice of an Elder Law attorney specializing in Article 81 Guardianship Proceedings in your area to learn more about commencing an action.
