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Guardianship Attorney Long Island Guide: Navigating the Elderly Guardianship Hearing
Facts: According to studies, 1 in 4 adults has some form of disability, including vision, mobility, and cognition and hearing impairments. The number grows with age, with 2 out of 5 people over the age of 65 having a disability.
When you want to be a guardian, or if you have been appointed as one, you need to go for a hearing at the probate court in Hempstead. Today we look at what happens in the guardianship hearing for adults, how the court determines who to name as the guardian and the types of guardianship that you will opt for.
Usually when we hear of the term guardianship we usually think of little kids that are being cared for by a caretaker that has been appointed by the court. However, you also need to know that the elderly also have guardians that look after them.
Who is a Guardian?
When a person is given the mandate to be the sole decision maker in respect to another person’s personal decisions and finances, this is referred to as a guardianship. An example is when a child becomes the guardian of an elderly parent suffering from disability, or incapacitation due to advanced age.
Types of Guardianship
There are two major types of guardianships that you can choose from – guardianship of the person and guardianship of the state – and the law allows you to seek one of both of them.
Guardianship of the person is when you are granted the power to make decisions with regard to living arrangements and healthcare. For this, you have to prove that the ward is not able to make informed decisions about their personal lives.
Guardianship of the estate is when you are granted the power to make decisions that touch on financial matters. To this end, you must show beyond reasonable doubt that the potential ward isn’t able to manage their finances, such as paying their bills and managing a checking account. This type of guardianship is hard to obtain and can be complicated. It is therefore ideal to consult an attorney on how to obtain the guardianship.
So, what is the role of elderly guardianship for seniors?
Taking Care of seniors
Aged adults have a problem when it comes to taking care of their finances as well as daily activities. A senior person will usually need a guardian to look after them, and usually the kids can work to come up with this person.
For many people, the guardian is usually appointed well ahead of time, so that when the time comes for them to handle the senior, the service will be available. In such a situation, the elder adult usually has a hand in choosing the person to look after him, making it easier and more convenient.
It Protects the Finances of Older Adults
Many elderly people have amassed property and wealth over time, but they end up losing the wealth when they become incapacitated or unable to perform their daily tasks.
When you appoint a guardian, you have a trusted person that can look after your personal finances and assets. Due to illness, injury and age, the senior person might not be able to handle their assets the right way. In this case, you need to have a guardian of the property.
Caring for the Person’s Health
As you age, you are prone to conditions that might disable you. In such a case, you need a guardian of the person, who is charged with caring for your health. The role of this person is to make the healthcare appointments, manage the assisted living conditions and handle insurance issue s on your behalf.
In all cases, the guardianship gives you the rights over the personal decisions for the ward as well as the estate properties. When it comes to managing the assets, your role is o handle tax payments, distribute the property and manage inventory.
The Process
The court makes use of two types of articles – the SCPA Article 17-A and MHL Article 81 to make sure that the rule of law is followed.
Although guardianship is most appropriate for minors, some adults end up needing the assistance of a guardian with their daily activities. In such cases, either article 17A or article 81 guardianship is required. It is your responsibility to determine which one is an ideal choice for you.
Article 17A kind of guardianship is more diagnosis driven and you will need to get the right documents from your child’s psychiatrist or physician. Article 81 focuses more on the functional limitations of an adult and does not need a doctor’s certification.
To qualify for Article 81 guardianship, you will need to prove through a testimony in court that your loved one is unable to take proper care of themselves and that they are unable to appreciate the nature of their disability.
Becoming a guardian using Article 17A is easily attainable because you do not need to hire an attorney. Once you are appointed, you will hold any funds that belong to the ward jointly with the Surrogate’s Court and should get permission from the court before withdrawing the money.
You will also need to give an annual account to the surrogate court annually. An examiner from the court will assess your submissions and present a report to the court to determine your suitability to continue serving as the incapacitated individual’s guardian.
With Article 81 guardianship, you will typically need the assistance of an attorney to prove to the court that your loved one needs a guardian.
For you to get guardianship of an elderly person, you need to get a court order. You need to file a petition at the probate court along with all the necessary documents. However, the necessary documentation vary from one county to another, reason why you need to talk to the court clerk to determine what documents that you need to make the process successful.
However, it is vital that you state in the petition your relationship with the ward, so that the court can determine whether you are the best person for this role. Additionally, the court has to prove that the elderly person cannot handle the decisions that are vital to survival, therefore requiring a guardian. We have seen instances where people have come up with fake procedures to make sure they become guardians.
Once you file the petition, the court will come up with a date when the hearing will be done. The role of this hearing is to determine if the senior needs a guardian and whether the proposed guardian is the right candidate for the role. In normal circumstances, the court will grant guardianship to the relatives – adult children spouse or close family members.
It is only when the immediate family members are deemed not fit for the role is hen the court can appoint another person that isn’t related to the senior as the guardian. In this case, the guardian is paid for the services that he renders. Make sure you seek for professional guardianship attorney Long Island assistance to take you through the process.
The Court Hearing: What Happens?
Most of the adult guardianships are usually uncontested, which means that the disabled adult or the relatives are comfortable with the decision. The court also decides that the person that has been proposed as the guardian is the right choice. This process is usually short and fast. In this case, there is no witness called to testify because everything is straightforward.
In some instances, the guardianship is contested, which means that someone isn’t comfortable with the decision or the proposed person. If the process gets contested, then the case goes to trial just like any other litigation. If the elderly person is in a capacity to talk, then the court will listen to him. Litigation is easier when you utilize guardianship attorney Long Island services.
When it comes to trial, the court will listen to documentary and other types of evidence. In most cases, the aim is to show that the disabled adult has a disability and needs a guardian. In some instances, physicians are used to testify like expert witnesses.
The role of the court is to determine that the adult needs a guardian or he doesn’t. Regardless of whether the case is contested or not, the court needs to determine the following:
- The nature and the severity of the mental illness or any disability experienced by the senior.
- The intellectual and physical abilities of the adult.
- The ability of the senior to communicate clearly and make rational decisions on their own.
- The ability of the senior to handle their financial affairs.
- Whether there are arrangements that have been made that are appropriate for the senior.
- Any other situation that the court sees as appropriate.
In any case, the disabled person needs to attend the court hearing, unless this has been explicitly determined by the judge. The court can allow the senior to stay away if he so sees fit, or if their attendance can be harmful to the case.
How Does the Court Determine Whom to Name as the Guardian?
The court uses some set rules to name the guardian. However, the court also uses its experience as well as looking at the situation to make a decision.
Here are a few factors that determine what the court decides:
- The recommendations from the senior’s family determine a lot towards the decision. Normally the family has an idea of the best person to be a guardian for the senior, and they will make sure the person has the best interest of the person at heart.
- The relationship that exists between the proposed guardian and the senior. Normally, it is supposed to be a close relationship, because the proposed guardian needs to know how to handle the issues of the ward.
- The court looks at any actions of the senior person before they became incapacitated or disabled. These actions will serve to demonstrate to the court that the disabled adults trust the proposed guardian.
- Any prior action by the proposed guardian that shows that the person is has the interests of the senior at heart.
- The capacity of the proposed guardian to manage the estate of the ward the right way.
- If the proposed guardian has other responsibilities that conflict with the responsibilities of guardianship.
- Any interest that the proposed guardian has in the estate of the senior person, as well as past impropriety on the part of the proposed guardian.
These and other factors come into play to determine the decision of the court. While you might feel that these are the only factors that come into play, you are wrong. The court can use other factors that make the whole process easier. Each situation is unique, and the court knows this.
The Role of an Attorney
Before the hearing starts, the probate court appoints a guardian ad litem. This means that the guardian is there to represent the interests of the person during the hearing. Normally this is a lawyer that handles the process. The aim is for the lawyer to investigate the situation and then give the court a report before commencement of the hearing. The lawyer will tell the court if the senior needs a guardian or not.
This guardian will meet with the senior and tell him his rights as well as notify him that he can appoint an attorney to handle his issues.
The lawyer also advices the parties involved on what is going on and what to do.
Guardianship Priorities
The judge will decide the appointment of the guardian based on a few priorities:
- A guardian that has been appointed in a different state.
- The person that has been named by the senior himself.
- A person that has been named in the persons durable power of attorney (POA)
If there isn’t anyone that meets the criteria or when none of the individuals is able to serve, or isn’t available, the judge might appoint one of the relatives. The judge follows the following order of priority:
- The spouse to the senior or another person that has been nominated by the ill or in a document that has been prepared by the deceased spouse.
- An adult kid of the senior.
- A parent of the incapacitated person or a person that has been named in the will or through writing.
- A relative of the person with whom the senior resided with for more than six months before filing of the petition.
- A person that has been nominated by the caregiver.
The judge has the rights to skip over the person in the list if the judge believes that he isn’t suitable to serve. In case the family members disagree on who should be the guardian, then the judge can make the final decision based on the best interests of the person. If you feel that the process is not fair, you can opt for guardianship attorney Long Island services to appeal the decision.
Confident game on the legal field. We will protect you from problems!
Marianna Schwartsman
Tips When Hiring a Guardianship Attorney
Sometimes the process of winning a guardianship petition is as good as the guardianship attorney Long Island practice hired to do the work. The attorney’s work is generally to advocate for you while ensuring the interests of the ward are advanced. Hiring a suitable lawyer is not an easy endeavor, and one requires some guidance for how to go about it.
Particularly with the numbers of those practicing law increasing by the day, sifting among them to hire the one that is suitable for you needs a certain level of awareness on what to look for. One needs to have expert knowledge and a specialty in guardianship law to be a good fit. The tips for hiring a guardianship attorney include;
Use Referrals
It is usually an easier way of landing on a great lawyer, especially for family-related cases. This involves finding people within one’s network of friendship work or otherwise, who have had some guardianship cases. You acquaint yourself with the nature of the case, and through them, get linked up with a lawyer than can handle your kind of case.
What is vital in this instance is not just being referred to some lawyer but also knowing the type of case that a friend or family member litigated in with the lawyer and establish a relationship with yours. You do not just have to accept a referral because they were referred to you by someone you know or trust.
Opt for Specialization
As hinted in the introduction, legal practice is characterized by specialized in varied niches. In this case, you are looking for someone that has spent time handling guardianship suits. It is not true to think that a lawyer can be so consummate in their practice to be sharp and knowledgeable in the entirety of legal specialties.
A specialized lawyer has grown their skill and understanding of the nature of guardianship suits and is vast in all and specific dimensions of it. Such a lawyer can work through a case with greater ease and understand your needs better in order to advocate for you well. This is opposed to a lawyer who is not well vast in guardianship and as not internalized the niche well. They will grapple with familiarizing themselves with your facts and the legal underpinnings to them.
Look at the Credentials
This is about the training that the attorney has in the possession. This means that you know what a lawyer must show as proof of their license to practice as guardianship lawyers. Dig into a lawyer’s academic merit that set up their career and how they have built up their portfolio. You should only engage a licensed attorney and confirm that other certifications are verifiable with the relevant government regulating body.
Find an Attorney That Is Sympathetic To You and Your Situation
Cases of guardianship are not just about the professionalism and the fact that the lawyer will be paid. It is about the lawyer being able to internalize the facts and empathize. You have to weigh the level of involvement of a lawyer with the case and how compassionate they are. Guardianship battles may involve emotional battles, propaganda, and hard-tackles that need a lawyer who cares instead of simply doing the job they are hired for.
Therefore, you should not imagine a lawyer that is unavailable, impatient and has to make you content with unanswered calls. They should be concerned about explaining themselves and compassionately walking you through any realities that they feel could be thorny for you. Do not tolerate a lawyer that shows insensitivity to the situation for which you are seeking their services.
The Rapport Matters
Guardianship may sometimes get ugly when contesting parties tear into each other to show which party should or should not be granted guardianship. This means that you will have to walk the lawyer through some of the skeletons in your life or family.
You need to have a lawyer you can trust with some of your life’s ugly secrets and dark sides. You need to have a belief and trust in the attorney. You should feel comfortable associating with them and counting on them to be on your side no matter what they get entangled in being your lawyer.
Overall, consider the cost implications as well. This article also touches on experiential considerations. You have to be clear about the things you want and can compromise and those you cannot. Perhaps you will need to create a checklist to serve as a basis for scoring the level of merit of the lawyers you will be considering for hire.
Why Choose to Work with Us
Guardianship provides stability to the ward as well as their family members. When a beneficiary is declared incapacitated, a guardian is always appointed to manage their affairs to ensure that they do not engage in reckless financial, medical, and legal behavior.
Guardianship protects the assets of a minor or incapacitated individual from predatory relatives and friends. The exploitation of such people has become a common issue today, and working with us ensures that this does not happen.
Appointing us to represent you in your guardianship proceedings helps prevent a tug of war among competing family members interested in making decisions on behalf of a vulnerable loved one.
Allowing the court to carry out guardianship proceedings accordingly ensures that the testimony of the alleged incapacitated person gets considered when appointing a guardian for them. If this does not happen, the incapacitated person retains the power to handle their estate despite being unable to carry out the responsibilities associated with the estate.
Our practice ensures that this does not happen. We assist you to become a guardian for your loved one who may be incapacitated in some way. Although several law firms may offer you this service, we come highly recommended because of our unique and custom-made advocacy strategies. Here are some explanations why you should allow us to handle your case:
We Possess a Track Record of Success
We are always honored to serve you in a way that facilitates success. We have served several clients before and appreciate the long-term relationships we have built with them. We are proud of the fact that most of our clients usually come back to our firm or refer their colleagues, families, and friends to us.
Our team of guardianship lawyers always strives to know you better. They stand with you from the start of the guardianship petition to the end. We believe that it is our responsibility to meet our clients’ needs and that is exactly what we do.
We have always received top priority within the region over other firms. Our legal strategies are established around fulfilling your desires and making the process easy for you. We always customize our policies to ensure the timely delivery of legal services to each client.
Choosing us as legal representatives for your guardianship proceedings allows you to enjoy individualized services. Once you confirm your intention to engage us, we shall review your case and guide you accordingly.
We Bring a Great Depth of Experience to the Table
When it comes to the legal industry, nothing can substitute years of hands-on experience. Since the inception of our practice, we have continuously acquired experience in numerous practice areas, including guardianship.
We, therefore, have the right practical knowledge needed to win your case. We can anticipate any issues you may face and assist you to avoid them beforehand. Where litigation is necessary, we make use of our vast experience in the courtroom to give you a better advantage over your contesters.
As a client, you can always be sure that your case will be handled with the utmost dedication and skill. The fact that our attorneys are experienced in various practice areas gives us an upper hand when it comes to meeting the varying needs of our clients. We also have guardianship attorneys that are licensed to practice within various jurisdictions.
Once you confirm the decision to work with us, we ensure that you have adequate information at each stage to prevent you from using guesswork to establish the next course of action.
We Ensure Value-Addition all the Time
We aim to provide the best value to your case. Our professionals are capable of carrying out the most complex and sophisticated responsibilities on behalf of our clients. We bring you high-quality work at better rates than other firms.
We are experts when it comes to handling guardianship matters. It may be difficult for you to go through the process alone. That is why we are always on standby to help you complete the responsibilities associated with your case. We liaise with the court and other involved parties on your behalf as a way of minimizing any legal mistakes that may occur.
We carry out our activities in a way that facilitates excellent relationship between our clients and other parties.
Besides adding value to our clients, we always take the initiative to guide you through each stage of the process. Our staff has been trained to initiate conversations with our clients. Therefore, we will always contact you with updates about your case without being pushed.
Our guardianship attorneys have also been trained to maintain high levels of integrity when engaging clients. We understand how difficult the whole process may be for you and would not wish to make things more complicated for you.
We Offer Personalized Services
Most clients come back for our services because we endeavor to understand their needs. We then customize our services to capture all their concerns and challenges as we aim to achieve their goals.
We count ourselves as partners in your success and strive to ensure that you put total trust in us. We use the latest technology to gather information, draft the necessary documents, and communicate with you.
Unlike other legal firms, we engage you directly and do not work through agents. We never hand your case over to a third party, however complicated it becomes. We continuously review your case and advise you on the best course to take.
We also give you direct contact details that you can use to reach out to us more quickly. We aim to represent you adequately during the entire period.
We Have a Passionate Team Ready to Serve You
Our guardianship attorneys have a keen passion for the law. This is what motivates us to stay current on all guardianship trends, regulations, and changes. We employ simple, yet tested strategies to deliver cost-effective solutions to each of our clients.
We always strive to listen to your concerns and address them accordingly. We are confident in each of our team members and their capability to handle all forms of guardianship cases.
Our services are comprehensive and include representation in the courtroom when the need arises. We understand that some of our clients may be facing guardianship proceedings for the first time. We take it upon ourselves to understand your circumstances with compassion and impartiality.
We Avoid Complacency
We do not believe in using the same strategies for years on end. We always seek for ways to improve our services and upgrade our strategies. We always allow our clients to give us feedback about our services and what needs to improve. Doing this has enabled us to stand out as the legal firm of choice for several years.
We have also invested in the latest legal systems and technologies to ensure that we deliver our services in a more streamlined manner. We work diligently to deliver favorable results.
In case you need to go to court, we assist you to prepare the necessary documentation, including guardianship petitions. We also assist you to obtain the necessary legal rights from the court and handle any paperwork that may be involved. You will find that our guardianship attorney Long Island services are the best in Hempstead, find out for yourself!
Our Services are Cost-Friendly
Some guardianship cases are straightforward than others. Our staff has been trained to assess all issues associated with your case and recommend the best solution at affordable costs.
We represent you at all stages of guardianship proceedings and believe that we have the right competencies to handle simple as well as complicated cases. Our guardianship and conservatorship attorneys are always willing to handle any type of case without being mindful of how complicated it is.
When not working on guardianship cases, our attorneys spend time researching the most simplest and cost-effective ways of delivering their services to our clients.
We Deliver to Our Promise
We understand that the outcome of guardianship proceedings depends on how well we represent you. Besides meeting your interests, we also ensure that the final decision made by the court ensures the safety of the ward.
During the initial meeting with our clients, the first thing we promise them is our ability to deliver positive results. We have several testimonials from previous clients, who have shared how we assisted them to attain success.
By personalizing each case, we maximize the possibility of an excellent outcome for you. We understand that each case needs to be handled using a unique approach and this is exactly what we do.
Our team is made up of enough professionals who have mastered the art of multi-tasking. By expressing your interest to work with us, you can be sure that we will handle your situation with the urgency it deserves.
We aim to make even the most complex guardianship process as simple as possible. We provide you with the best attention and care you need. We take responsibility of correcting any legal mistakes that may occur during the guardianship process.
We also take the initiative to remind family members and other important parties involved in the guardianship of their legal responsibilities. We understand how important it is for all the parties to work as a team, and would never want to jeopardize this when it comes to handling your case.
How we work:
Our usual process
Step 1 – Contact
Step 2 – Review and Analysis
Step 3 – Additional Screening
Step 4– Work Ethics
Step 5 – Results
1. Communication with the client.
Every day, our experts are ready to advise you for free!
2. Problem analysis
After providing legal advice and analysis of your documents.
3. Performance of work
The work process of our company’s specialists is based on complete transparency and constant informing of the client.
4. Positive result
After the court has satisfied your claims
5. Your rating, our work
Then we deliver the specified documents to you at a convenient time for you
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Frequently Asked Questions
Yes. As much as most people are made to believe that guardianship lasts forever, but some circumstances can warrant the termination of this kind of appointment. The downside of this decision is that it is rarely made by the guardian, as once they commit to permanent guardianship; they become parents to the child.
Some of the contributing factors may include:
- When the child becomes an adult:This is mostly when they turn 18 and are no longer obligated to be under a guardian. Such individuals can make their own decisions and even take good care of themselves.
- When the child dies:This is self-explanatory. When a child dies, then the guardian automatically is relieved of the guardianship.
- Sometimes, the court can decide to end the guardianship if they have valid reasons to do so. This can take place whether the guardianship is permanent or temporary. An example would be if they confirm that the guardian is no longer fit to perform their parental duties.
If your sister did not have a will or did not appoint a guardian for her children before death, you have to go through the whole court procedure to obtain guardianship.
- File an application at the court, citing your interest in taking responsibility for the children.
- In the application, you must include all the details concerning the children. Also, you would need the death certificate of your sister and other relevant documents such as the birth certificates of the children to have a valid case. You will need to provide details as to why you are the best person to serve as the children’s guardian.
- The relevant people have to be notified of the application. This includes all the immediate relatives who have any say over the children’s welfare.
- Once the court has all the details, they will initiate some investigations to determine whether the application should be approved.
- A hearing is conducted, and the guardianship application is either approved or declined.
In most cases, no. The guardian always uses the child’s funds or assets to take care of them. This is the way guardianship is designed. However, some children come with no inheritance or assets, and the guardian has to use their resources to take care of this child. This is where the challenge comes in.
In some states, the government has public funds that are used to take care of such cases. Unfortunately, this may not always be the case; hence the guardian always needs to have some source of income to cater to the ward’s needs.
Once you have applied for the guardianship and the court has set a hearing date for you, you need to prepare your full defense to potentially win the case:
- You have to be present for the hearing in person. It is easy to represent yourself as you have all the required information at your fingertips.
- Carry all the right documents required by the court.
- Have your defense details clear, with any necessary evidence you might need.
- It is advisable to have legal representation, as guardianship lawyers always know what to say and do in case anything comes up.
Yes. Some situations will lead the court to revoke an approval that was made over a certain guardianship. A concerned relative or family friend might contest the guardianship, especially if they notice that the guardian is not doing their job as they should. In such a case, the court will do their investigation and decide to revoke the agreement if they realize that it is in the ward’s best interests.
In other cases, the child may grow up and feel like they no longer need a guardian. They can go to court and apply for the agreement to be revoked, as they will be adults who can make their own decisions.
You might also find a guardian who decides to cancel the agreement midway, so they approach the court and requests that the appointment be revoked. The guardian can do this because they can no longer afford to take care of the ward, or if they are moving out of state and feel like the child will be better off staying behind. The court will consider such grounds to revoke the agreement and look for a replacement.
