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A growing number of requests for guardianship in Brooklyn are being filed by people hoping to protect the health and financial well-being of an elder adult. Usually, we see this with adult children seeking guardianship of their elderly parent in order to manage their affairs and oversee health care decisions when the parent suffers from dementia or is otherwise incapacitated and unable to make his or her own decisions.

These situations are guided by Article 81 of New York’s Mental Hygiene Law.

In some cases, the parent lives with the adult child, and other times, he or she is cared for at a nursing home or assisted living facility. Our Brooklyn family law attorneys believe it’s important to note that not all guardians in New York are granted the same powers. Orders are drafted specifically for each case so that guardianship authority is tailored specifically to be able to meet the needs of the incapacitated person. For example, some elderly adults may only require assistance to pay their bills, so the court would limit the guardian’s power to financial management. In a case with a person suffering severe dementia, the court may give the guardian a much wider swath of power.

While the process in these cases is often straightforward and unchallenged, family conflicts do sometimes arise.

This was the case recently for the parties involved in In re J.A.L., overseen by the Montana Supreme Court. This was a difficult case where it was clear there were no easy answers. The court worked to act in the best interest of the incapacitated adult.

According to court records, the woman at the center of this case had been married to her husband for 50 years. During that time, the husband provided her with care in their home, as she suffered from both cognitive impairments and her mobility was limited by multiple sclerosis.

However, as time went on, the husband was unable to provide her with a sufficient level of care, even with assistance. As a result, she was taken to live in an assisted living facility.

However, the husband reportedly caused problems with the doctors, nurses and staff at the facility, and the wife was discharged. This series of events repeated itself again. The husband suffered an emotional breakdown and was admitted for care at a state hospital. When he was released, he stopped taking his prescribed psychiatric medication, as he did not like the side effects. He did not seek further treatment for his mental health issues.

Meanwhile, the wife’s daughter and son sought, and received, appointments as co-guardians and conservators for their mother. She was placed into another assisted living facility, and appeared to do well. However, once the husband began to visit frequently, this changed. She began “acting out.” The husband called sometimes 40 times in a single day and was disruptive when he was present. She was again discharged.

The woman’s son and daughter had trouble in responding to these problems. A guardian ad litem was appointed for the woman, but the husband reportedly interfered with his wife’s communication with the court-appointed GAL.

An emergency court hearing was held, and guardianship was transferred from the woman’s children to her brother and sister-in-law. She was then re-admitted to the assisted living facility, on the condition she have no contact with her husband. She reportedly did well after that point.

The husband then filed two petitions with the court, seeking to remove the guardianship granted to his in-laws and to appoint him as his wife’s guardian. The court held six hearings on the matter, and ultimately rejected his requests, and gave the in-laws full guardianship and granted them the authority to limit the woman’s contact with her husband.

He appealed, but the lower court’s order was affirmed. The Montana Supreme Court justices noted the woman’s declining physical and cognitive health required that she have a guardian to oversee her affairs. However, the court ruled the husband was not in a position to do this, as he’d displayed a history of inappropriate behavior that did not serve to protect his wife’s health and welfare. While the court has ruled that guardians can’t initiate divorce proceedings for a ward, they can influence the marital relationship if it’s in the best interest of the ward.

If you need help securing guardianship of an elderly loved one in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

In re J.A.L., July 23, 2014, Montana Supreme Court

More Blog Entries:

In re Guardianship of Madelyn B. – Same-Sex Couple Custody Dispute, July 11, 2014, Brooklyn Family Law Attorney Blog