The Legal Standard in Article 81 Guardianship Cases

As an attorney who has been involved in hundreds of guardianship proceedings, I speak with a lot of people who want to know how they can apply for guardianship of a friend or family member.

Rightfully so, most of the people who call with questions about guardianship proceedings are unsure how the overall legal process works and, as a result, callers are unsure how to start the conversation. They’re unsure what information is relevant. That’s to be expected because, otherwise, they wouldn’t need an attorney. Rather, they could draft the necessary court documents themselves in order to get the proceeding started.

Which brings me to the point: the main reason behind hiring a guardianship attorney is because the attorney knows exactly what evidence the Court is going to require in order to succeed. The attorney’s job is to guide a client by sorting through all of the available information to determine what is relevant and, therefore, what is going to satisfy the legal standard the court will apply during the hearing.

In other words, the legal standard is the frame into which the attorney is responsible for positioning only those facts that are relevant.

The following is a paraphrased version of the legal standard for a guardianship proceeding:

The court may appoint a guardian if the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person, and that the person agrees to the appointment, or that the person is incapacitated.

So there are really two parts to the above standard. First, the court may appoint a guardian if it appears to the court that the person is incapable of handling his or her day to day affairs. Second, the person must either agree to the appointment of a guardian or, if not, then the court has to find that the person is incapacitated.

As it relates to a guardianship proceeding, the law spells out what “incapacity” means:

Someone is incapacitated if that a person is likely to suffer harm because the person is unable to provide for personal needs and/or property management and the person cannot adequately understand and appreciate the nature and consequences of such inability.

That was kind of a mouthful, so let’s break down the entire standard into smaller, bite-size pieces:

1.     The court may appoint a guardian-

2.     If the appoint is necessary-

3.     To provide for someone’s personal needs with personal needs meaning food, clothing, shelter, health care, etc.-

4.     Or someone’s financial affairs-

5.     And the person either agrees to the appointment of a guardian-

6.     Or the person is incapacitated-

a.     Incapacity is defined as the likelihood that the person will suffer harm because he or she is unable to take care of their personal needs or financial affairs and they don’t understand the nature and consequences that they’re unable to do so.

If you call The Donaldson Law Firm and want to talk about a guardianship proceeding, we’re going to ask questions involving answers that address the legal standard because, when you end up in court to prove your case, the only way the judge is going to appoint a guardian is if facts are presented that address the legal standard.

For example, let’s say Joe calls about his mother Mary. Joe says he thinks Mary needs a guardian. Here are some of the questions that we’ll ask Joe:

a)    How old is Mary? Where does Mary live now? Does Mary live with anyone or does she live alone?

b)    Can Mary get up out of bed by herself? Can she bathe unassisted? Can she cook? Can she perform simple household chores?

c)    If you gave Mary a bill, would she know to pay it? Can write a check? Has she been paying her bills on time? 

d)    Is Mary suffering from memory loss that prevents her from realizing she can no longer handle her daily affairs?

Coming full circle, there is probably a lot of information you can share with an attorney when you’re thinking about starting a guardianship proceeding. However, the most important information that you need to give your attorney are those facts and allegations that identify whether the person is unable to manage their daily affairs and that they fail to appreciate they can no longer do so.

I hope that was helpful.

Stephen Donaldson, Esq.