Q: Guardianship, What is it?

A: Guardianship proceedings ask that a court make a determination as to whether a person is incapacitated. Guardianship proceedings seek to determine whether an individual is capable of caring for themselfs with regard to both his or her financial and/or personal needs. If the individual is not capable of caring of his personal and financial needs a guardian is appointed for him or her. Either a person or an institution can serve as a guardian for this individual. Guardianships usually deal with individuals who are developmentally disabled, mentally incapacitated, suffering from an illness, have been in an accident, or suffer from diseases related to aging that incapacitates them.

Q: Are guardianship proceedings quickly resolved?

A: In theory guardianship proceedings should move expeditiously through the courts in New York. However expeditiously may mean several months. Guardianship proceedings can be either contested or uncontested. Uncontested guardianship proceedings are where other individuals related to the alleged incapacitated person agree that he or she needs a guardian and who the guardian should be. However in cases where the person a guardian is sought for, if other family members friends or relatives feel he or she does not need a guardian the guardianship proceeding can be contested. Contested guardianship proceedings take longer to get through the courts than uncontested guardianship proceedings.

Q: Can guardianship proceedings be avoided?

A: Generally speaking, yes. Individuals who have powers of attorney and healthcare proxies can usually avoid the need for an appointment of a guardian. The preparation of an appropriate power of attorney allows an individual to appoint someone to make decisions for him or her in the event that he or she becomes incapacitated or unable to handle their own affairs. However, it should be noted, a guardianship proceeding can be brought to set aside a power of attorney when the individual bringing the guardianship alleges the power of attorney has been misused or the individual with the power of attorney has failed to act appropriately pursuant to the terms of a power of attorney.