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Guardianship

Guardianship

Q: I have an elderly aunt.  I’m embarrassed to say that I only visit once every few months.  I recently learned that she has a caretaker that has moved into her house and I suspect she is taking money from my aunt. When I asked my aunt about it she got angry.  What can I do to protect her?

A:  Your aunt may very well be the victim of elder abuse.  It sounds as if she has become vulnerable because of her inability to take care of all of her own needs and the caretaker who was supposed to be helping her may be harming her.  Unfortunately, it is often someone close to the elderly person who takes advantage. 

It is likely that you will have to commence a guardianship proceeding in the County in which your aunt lives.  Your attorney would have to prepare a petition that explains your aunt’s weaknesses, the circumstances of the caretaker’s actions and the ways in which you believe they are causing harm to your aunt and that she is likely to suffer harm.  Your petition will have to have enough information in it to raise the suspicions of the court, then a court evaluator will be appointed.  This is an individual, often an attorney, that is appointed to do an investigation; they are often referred to as the “eyes and ears of the Court.”  While the Judge makes the final determination, the report of the court evaluator informs the Judge of the circumstances.  These observations along with the information that you and other witnesses provide will be the evidence upon which the court will make a determination.

Once appointed, the court evaluator will interview you, your aunt, the caretaker, and any other persons who are identified as possibly having relevant information.  The report of the court evaluator will be submitted to the Court and the evaluator will testify at the hearing that will be held within 28 days.  It should include recommendations including whether the evaluator believes your aunt suffers from limitations, the effect of which is that she is likely to suffer harm. The court will determine if she lacks the capacity to handle her own affairs and that she requires the assistance of a guardian. Or in the alternative, if she has capacity, she can consent to a guardian.

The powers granted to the guardian are supposed to be only those that are absolutely necessary for your aunt’s well-being.  The idea of the guardianship is not to take away functions and responsibilities from your aunt that she can properly handle on her own, but to appoint someone to assist her with the things she cannot do and protect her from being a victim of undue influence of an un-monitored caretaker. 

You should consult with an attorney experienced in guardianship as a first step if you do believe that the caretaker is taking advantage of your aunt.  The attorney can outline for you the risks and possible outcomes of bringing such a proceeding. 

 

- Nancy Burner, Esq. and Britt Burner, Esq.

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