Guardianship Legal Procedure

The steps involved in any legal proceeding can seem confusing. Even practicing attorneys can end up scratching their heads when faced with counterintuitive court-mandated procedures that feel like they fly in the face of common sense.

When it comes to guardianship proceedings, the majority of clients come to the table with the best of intentions: someone they know has become unable to take care of their personal and financial affairs and, without help, the circumstances will go from bad to worse.

Even worse, circumstances arise where a friend or family member is financially abusing a person who has lost the ability to recognize that they’re being ripped off. When that happens, the people trying to help want to make sure that the wrongdoer is held accountable.

While such intentions are admirable, holding someone accountable for suspected financial elder abuse puts the cart before the horse.

In a guardianship proceeding, the first step is to ask the court to appoint a guardian for the alleged incapacitated person. If the court appoints a guardian, it then becomes the responsibility of the guardian to investigate the financial abuse and take action if the guardian finds that doing so is in the best interests of the incapacitated person.

For example, let’s say Matilda lives in Queens with her twenty-year-old grandson, Josh. While the rest of the family understands that Josh is not exactly making the most of his life by way of drug abuse, Matilda is blind to all that and can’t help but think the most of her grandson.

However, Matilda has been suffering from memory loss the past year and trusts that Josh, to whom she gave her ATM card so he could buy groceries, is applying her $1,500 monthly social security check for nothing other than rent, milk, and bread.

When Josh’s sister Stephanie visits her grandmother while Josh is out, she spots one of Matilda’s bank statements on the kitchen table. She can’t help but notice all of the recent $200.00 withdrawals that were made from ATMs in the middle of the night around downtown Manhattan. Realizing her clubbing days are well behind her grandmother, Stephanie concludes that Josh has been funding his lifestyle with their grandmother’s money, so she contacts The Donaldson Law Firm to inquire about guardianship.

“And most of all,” Stephanie tells us during the consultation, “I want to make sure my brother Josh has to give back all of the money he’s stolen from my grandmother.”

Stephanie has every right to be upset. The first step, though, is to prove to the court that the appointment of a guardian is necessary because Matilda is incapacitated due to her inability to manage her financial affairs.

If successful and the court appoints a guardian (and Stephanie does not have to be the guardian – she can ask the court to appoint an independent law guardian), the obligation to investigate the financial abuse falls on the guardian.

If interested in discussing a guardianship case you’d like to start, please contact our offices for more information.

Stephen Donaldson, Esq.