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Bohemia, New York 11716
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Wednesday, January 19, 2011

What is Guardianship?

The short answer is simple.  Guardianship under Article 81 of New York's Mental Hygiene Law allows a court to appoint a guardian to manage the personal or property needs of a person who is unable to provide for their own needs AND cannot adequately understand/appreciate the consequences of their inability to do so.

Since the appointment of a guardian takes the ability to make decisions away from the incapacitated party it should only be considered as a last resort.  If a person has already executed a health care proxy and/or a power of attorney, a guardianship proceeding may not be necessary.  Advance directives such as a health care proxy and/or power or attorney are a less restrictive means of meeting the same goal.  However, if a person no longer has the capacity to execute advance directives a guardianship proceeding may be the only available option.  

Guardianship orders are not one size fits all solutions.  Each is specifically drafted so that the powers  granted to the guardian are specifically necessary to meet the needs of the person who is incapacitated.

As previously indicated, guardianship under article 81 is granted in cases where a person is unable to provide for their own needs AND cannot adequately understand/appreciate the consequences of their inability to do so.   In New York State there are two other types of Guardianship proceedings that may be sought in the Courts.  Article 17 of the New York State Surrogate's Court Procedure Act allows for the appointment of a guardian for infants under the age of eighteen years old.  Article 17a of the New York State Surrogate's Court Procedure Act allows for the appointment of a guardian for the mentally retarded/developmentally disabled. It is essential that you consider the nuances of your own case and seek guardianship under the appropriate provision.

If you are considering Guardianship you can contact the Law Offices of Daniel A. Jimenez P.C. for an initial consultation.

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