Godmother Appointed Guardian of 40 Year Old With Down’s Syndrome

guardianship attorney on Long IslandA guardianship action was brought before Surrogate Rita Melia in the Surrogate’s Court of New York County. This guardianship was brought pursuant to Surrogate’s Court Procedure Act Article 17(a). The purpose of the proceeding was to determine who should be appointed the guardian of R.H., a 40 year old who suffered from Down’s Syndrome. Both of R.H.’s parents were deceased. R.H.’s brother had appeared during the course of the hearing via video conferencing. This was necessary because he was imprisoned at the time of the hearing. Justice Melia found due to the brother’s incarceration and conviction of a felony he was disqualified from serving as R.H.’s guardian. The brother had filed a cross-petition requesting the court appoint a designee on his behalf as the brother’s guardian.

Substantial Assets in the Parent’s Estate

The court took into consideration the fact R.H. needed a guardian because he had inherited a substantial estate from his deceased mother. The court found the brother who was incarcerated was going to inherit the other half. The brother had submitted arguments claiming the godmother was unfit to serve as the guardian. The court found these arguments unsupported by the evidence. The evidence presented showed the godmother and her spouse had provided R.H. with a nurturing place to live in and attended to his daily needs and care since the death of the mother. The court therefore concluded it was in R.H.’s best interest the godmother be appointed as the guardian. This was also supported by the guardian ad litem who had prepared a report for the court. The court therefore appointed the godmother as guardian of both the person and the property of R.H. upon her duly qualifying.

elder law attorney on Long IslandElliot S. Schlissel is an elder law attorney. His law firm has extensive experience in handling guardianship cases under both Article 81 of the New York Mental Hygiene Law as well as Article 17-a of the New York Surrogate’s Court Procedure Act. He represents individuals in all aspects of guardianship proceedings throughout the Metropolitan New York area.

Guardianship Proceedings in New York

medicaid elder care attorneyThere are several reasons to bring a guardianship proceeding in New York State. A situation may have arisen where a family friend or loved one is no longer capable of either taking care of themselves or handling their finances. In other situations an individual who is becoming incapacitated becomes the victim of a fraudulent transfer of assets, mishandling of funds and other assets by an individual using a power of attorney, or other actions taken by persons who have gained control of an incapacitated person’s assets and improperly spent them. Legal action can be taken to deal with these improper actions. In the State of New York you can bring a guardianship proceeding pursuant to Article 81 of the New York Mental Hygiene Law.

More Than 100 Years of Combined Legal Experience

The attorneys at the Law Offices of Schlissel DeCorpo have more than 100 years of combined legal experience dealing with, assisting and helping families, friends and loved ones take care of individuals who have become incapacitated, see to it their assets are secured, and in cases where there have been fraudulent transactions, recover those assets fraudulently taken or secreted by other individuals.

Guardianship Litigation

Senior citizens can be taken advantage of by a wide variety of means. Sometimes bright, articulate individuals develop issues concerning dementia, Alzheimer’s disease, or simply lose acuity and sharpness. They can become prey to fraudulent schemes, tricksters, and ne’er-do-well friends and relatives. Their assets can be attacked, taken, mishandled by caregivers, lawyers, friends and relatives.

Helping The Infirm

When an individual becomes old and/or infirm, they become more susceptible to having their decisions improperly influenced. This becomes a dangerous situation for them. In these situations it is absolutely necessary that a guardianship proceeding be undertaken to see to it their finances are secured and the senior’s health issues are dealt with. This protects the senior’s health and well being as well as securing his or her estate for future generations. Elderly individuals are often unable to protect themselves. Guardianship proceedings are undertaken to protect them.

Mistreating Seniors

If you suspect a friend, relative or loved one is being mistreated, taken advantage of, or is incapable of handling their personal finances or personal health needs, contact our office for a free consultation. We can help you deal with these issues. Our attorneys have more than three decades of experience seeing to it that senior citizens live with dignity, the respect and the proper health care they are entitled to.

guardianship attorney on Long IslandElliot Schlissel is a member of the National Academy of Elder Law Attorneys. He can be reached for a free consultation at 1-800-344-6431, 516-561-6645 or 718-350-2802.

Guardianship Petition Denied

estate planning lawyer on Long IslandJustice H. Patrick Leis, III sitting in the Supreme Court Part in Suffolk County recently denied an application for a son to be appointed the guardian of his mother.  The son alleged that there was a power of attorney naming the daughter as the attorney in fact.  Large sums of the mothers money were being spent.  He claimed his sisters were taking advantage of his mother and they were allowing her to enter into agreements which were not in her best interest.  He claimed the sister’s failure to utilize the power of attorney to take control of his mother’s assets, even though his mother was in declining health, was a violation of a fiduciary duty and she was not in compliance with the responsibilities under the power of attorney.

Arguments Insufficient

Judge Leis did not find the son’s arguments compelling.  He did find the mother had executed advance directives and the daughter had been named the power of attorney.  But he found the son was seeking to create a new duty which didn’t exist under New York State law for someone who was named as power of attorney.  Although there was evidence the mother did have short term memory lapses, he found she understood how her money was being spent.  He also found she had consulted with her daughter and her lawyer before making large financial decisions.  The son’s petition was therefore denied and no guardian was appointed for the mother.estate litigation attorney on Long Island

Guardianship Proceedings in Surrogate’s Court

Guardianship proceedings in the Surrogate’s Courts in New York State are regulated by Article 17A of the New York Surrogate’s Court Procedure Act. Pursuant to guardianships brought under Article 17A, parents who have a child who is either developmentally or intellectually disabled can maintain decision making authority for the child after the child is 18 years of age. The court takes into consideration in an Article 17A guardianship proceeding, whether the appointment of the guardian would be in the adult child’s best interest. Courts evaluate each case individually, taking into consideration what would be in the alleged incompetent’s best interest. Courts take into consideration the emotional needs of the incapacitated individual, physical needs, intellectual needs, and the limitations the individual has related to his or her disability.

Presumption of Appointing Parents

There is an initial presumption appointing the parents as guardians of their disabled child is usually in the child’s best interests. This is especially true if the child has resided with the parents since birth and the parents have taken care of the child and helped meet the child’s needs. Courts will generally only appoint a member of the family circle as the guardian of a disabled individual. Only in the event there is no family member available will the court generally look outside of the family to appoint a guardian under Article 17A.

Contested Guardianships

Although it is unusual, guardianships can be contested. If the two parents don’t get along, don’t see eye to eye, or one parent feels the other parent would be an improper guardian, litigation can ensue before the Surrogate’s Court to determine which of the parents would be the superior parent to act as guardian. In contested guardianship proceedings, it is usually in the disabled child’s best interest the parents work out an amicable settlement instead of litigating the matter.

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.assistance in guardianship proceedings

Father Appointed Guardian of Child, Aunt’s Application Denied

Proceedings were brought by both a father and a maternal aunt in the Surrogate’s Court of Essex County. Both petitioned to be the successor guardian of a developmentally disabled child. These proceedings were initiated after the mother, who had previously been the guardian of the child, died. The court took into consideration the child had a close loving relationship with the aunt. But the court also found the child had a closer, more loving and affectionate relationship with the father. The court also found that there was a deep emotional bond between the child and the father that didn’t exist between the child and the aunt.

Aunt a Stranger Under New York Law

Judge Richard Meyer sitting in the Surrogate’s Court of Essex County found both the father and the aunt had both the character, stability and the ability to adequately perform all the necessary functions as a guardian for this child. However, the court stated the law in New York is clear, strangers will not be appointed as guardians of persons or property of an incompetent unless there was not an appropriate member of the family circle who was qualified to act as a guardian. The court found that under sections 17 and 17(a) of the New York Surrogate’s Procedure Act, the status of an aunt could be equated to that of a stranger rather than someone in the “family circle”.

Mother Requested Aunt Be Appointed Guardian

The aunt had claimed in her petition that the mother, prior to her death, had asked the aunt to serve as the child’s guardian. However, the court found there was no sufficient evidence to prove this claim. In addition, the court found the father had a superior right to that of the child’s aunt to be appointed the guardian of the child. The court found what was in the child’s best interest was the father be appointed the child’s guardian and not the aunt. Therefore the court granted the father’s petition naming him the successor guardian and dismissed the aunt’s petition.

Conclusion

Fathers are important in the lives of their children. Even in cases where a mother will make a recommendation that another person be appointed guardian of a child, this will not trump the father’s right to be appointed the guardian of a child where the father is qualified, loving and capable of performing these functions.

guardianship attorneyElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He has been representing families in guardianship proceedings for more than 35 years. Elliot and his staff of attorneys protect father’s rights in guardianship proceedings. In addition, they represent fathers in custody and visitation cases in the Supreme Courts and Family Courts throughout the Metropolitan New York area.