Who is an Incapacitated Person?

An Incapacitated Person, or ward, is someone who needs help to care for themselves, manage their property, or handle their financial affairs. They may be too young or lack the cognitive or communicative capacity to make decisions for themselves, or to be able to give informed consent for personal, medical, or financial affairs. In this case, the Court may name a Guardian.

What is a Guardianship Proceeding?

Guardianship proceedings are commenced by filing an Order to Show Cause and a Verified Petition.
The County Court or Supreme Court must hear clear and convincing evidence of incapacitation. They need to see evidence that the person is likely to suffer harm because they are unable to provide for their personal needs and they cannot adequately understand and appreciate the nature and consequences of their inability (Article 81 of the NYS Mental Hygiene Law).

If the Court decides that a Guardian is needed for the ward there are criteria for the Guardian, as they are assuming the legal right to make decisions on behalf of the ward. They must be a legal resident or citizen of the United States. They must be at least 18 years of age and free of a criminal record.

What is a contested guardianship?

Sometimes the interested parties may not be able to agree if the person is genuinely incapacitated, which is why the Court makes the determination. Other times, there is a contested guardianship beyond whether or not the individual is incapacitated. These contested guardianships cases are where there are disagreements about the scope of the guardianship, or if multiple parties filing petitions for guardianship.

We are here for you.

Penachio Malara LLP regularly represents clients in guardianship proceedings and contested guardianship cases and disputes. Many of the issues we see in contested guardianship proceedings reoccur in other cases related to real estate and finance. We try to make this emotional process as painless as possible. Please contact our office at 914-946-2889 for a free consultation.


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