When families consider guardianship for a loved one, it’s not taken lightly. It’s a legal process that involves appointing a guardian to make decisions on behalf of an individual who isn’t able to care for themselves or make decisions independently. The purpose is to protect the best interest of the incapacitated individual–which can be attributed to age, disability, or cognitive impairment. There are a lot of misconceptions about guardianship, however, which makes it challenging for families to fully understand the scope of their options when developing their estate plans. The following are the five most common myths about guardianship.
Myth 1: Only a Judge Can Appoint a Guardian
Contrary to this common myth, in New York, guardianship isn’t solely within the jurisdiction of judges. Anyone can petition the court to appoint a guardian for another person. However, the court will only grant such a request if it determines that the individual in question is incapacitated and incapable of making their own decisions. The process involves a comprehensive assessment to ensure the person’s best interests. For example, if an adult doesn’t believe they require guardianship, they may wish to contest the petition.
Myth 2: Guardians Strip Individuals of All Their Rights
Guardianship is not meant to deprive an individual of their rights. Instead, it offers authority in specific areas of their life, such as finances, healthcare, and housing, to the appointed guardian. Basic rights like voting and privacy remain intact, preserving the dignity and autonomy of the individual. Children are an exceptional case, since they’re not expected to care for themselves.
Myth 3: Guardianship Is Always Permanent
Not all forms of guardianship require a lifelong commitment. It can be terminated under specific circumstances, or even transferred. If the individual regains the capacity to make decisions independently or if the guardian becomes unable to fulfill their duties, the court may reconsider the need for guardianship.
Myth 4: Guardianship Is Always Expensive
Even though guardianship may involve upfront costs, it is not universally expensive. The financial implications vary based on the individual’s needs and the type of guardianship established. Some government programs are available to help offset these costs, making guardianship more accessible when necessary. There are also certain guardianship scenarios where a trust has been set up with funds for the individual or child’s living expenses.
Myth 5: Only Family Members Can Serve as Guardians
It may be surprising, but guardianship is not restricted to family members. Any willing and capable individual can be appointed as a guardian, regardless of their relationship to the person in need of guardianship. What matters most is the guardian’s ability to act in the individual’s best interests. Those who wish to assign guardianship to a close friend instead of family members may sometimes be the preferred route if their personal circumstances are a better fit.
Planning for Guardianship
In addition to these myths, there is also the misconception that guardianship must be planned ahead of time. Sometimes an individual’s incapacity happens suddenly, and guardianship must be sought immediately. In these circumstances it’s best to work with an attorney to petition the court for guardianship. Although it’s not always mandatory to have an attorney to petition for guardianship, in certain cases, it’s still preferable if it’s in the best interest of the incapacitated individual.
If you are contemplating guardianship for a loved one or someone you care about, it is crucial to seek guidance from an attorney or legal professional who can provide the necessary information and help dispel myths and misconceptions surrounding guardianship as well as give you and your loved ones peace of mind. Ledwidge & Associates are here to assist you in making informed decisions that prioritize vulnerable family members’ well-being.
Ready to discuss your specific guardianship needs? Schedule a consultation by calling (718) 276-6656 today.
Ledwidge & Associates
Latest posts by Ledwidge & Associates (see all)
- Understanding Matrimonial Agreements: Prenuptial vs. Postnuptial - December 5, 2023
