Many family members and/or caretakers of loved ones with a disability may at some point need to be able to exert control over their family member's personal affairs. For parents of children who have a disability, for instance, that time is often when the child is turning 18. However, you may face roadblocks if you have not filed the appropriate paperwork that allows you to do so. When attempting to work with banks, agencies, and hospitals may push back on your ability to make decisions that can impact the care of your loved one.
What are your options in this situation? You may need to seek a guardianship.
In New York we distinguish between the types of guardianship, the types of guardianship are as follows: (1) Article 17A guardianship of the person (e.g., the right to decide on someone’s behalf about personal and medical issues) (2) Article 17A guardianship of the estate (e.g., the right to handle someone’s financial affairs). The level of decision-making and authority a person may be given over another is decided on a case-by-case basis.
In order to become a guardian, you require a court's approval. This means you must go through a legal process to acquire these powers over someone else's life. A young person living with a disability may already be unable to make their own decisions but is about to reach adulthood, and parents who need to be able to continue care for their child will pursue guardianship.
Guardianship proceedings can be expensive. Often, there may be other options available to avoid the crazy expenses acquired from going to court. If you can plan ahead before a person becomes unable to handle their affairs, this can make a huge difference in everyone's life and potentially make a guardianship unnecessary. For example, your loved one may be able to sign a power of attorney enabling you to make certain decisions on their behalf. They also may be able to sign a health care proxy that allows you to speak with medical professionals on their behalf.
However, if this is not possible, you may have to seek court intervention. Before you go to court, you should understand the significance of the responsibilities you will be given if a judge approves your request. You must be financially responsible, familiar with the intimate details of the incapacitated person's needs, and ready to be accountable and responsive to the court.
Involving the Court
Courts often prefer to appoint a close family member, such as a parent, spouse or domestic partner, or adult child, to serve as a guardian. However, above all, the court must feel confident that the person it appoints has the best interests of the incapacitated person at heart. Because of this, a court must scrutinize the guardianship request. In addition, if the person over whom you seek financial control has assets, you may be required to obtain a bond. The court may appoint an attorney to safeguard the interests of your loved one.
If guardianship of the property is approved, there are continuing reporting requirements to the court that can involve the preparation of accountings and other reports. Thus, the person who proposes to take on this role must be able to handle these responsibilities in a timely manner. Being a guardian is a long-term commitment. It lasts for the rest of an individual's life unless the court appoints someone else to take your place.
If you believe it may be necessary to pursue this option, you should start the process sooner rather than later. If you do not know where to start, speaking with any advocates or social workers who are already involved in your loved one's life is a great way to begin, as well as connecting with a special needs attorney.