Saturday, April 8, 2017

Guardianship #AtoZChallenge

My husband is the guardian of my autistic brother in law, "BIL".  A court has determined Bil is not competent to make decisions affecting his finances or his health, although it is actually more complicated than that.

One of my husband's duties is to keep his brother safe.

Right now, we are facing what is hopefully mild flooding in our area.  Bil is actually safer than we are right now- we are in a neighborhood that has flooded twice in the years that we've lived here.  
A park by our house on April 7The small building to the right is a picnic pavilion

But it's food for thought.  Our neighborhood has been evacuated twice in recent years, once in 2006, and once (in a flood much worse) in 2011. We would be in no position to keep Bil safe.  But, ironically, we might be able to take refuge in the apartment where Bil and his mother live.  They are, unlike us, not in a flood zone.

It really is ironic - Bil keeping US safe. 

So, what is guardianship all about? 
Note: this post is not legal advice, and is not meant to guide anyone in any guardianship effort.  Also, this process may differ substantially in states other than New York. 

My brother in law is smart in certain areas and naive (if I may use that word) in others.

He is in his 50's and, up to about three years ago,  no one had ever been "Bil's's guardian. There are many decisions he can not make for himself. 

In a talk with his Medicaid Service Coordinator, my husband, who is Bil's oldest brother, found out that if something happened to Bil where a decision (financial or medical) had to be made and there was no guardian, there would be an involved court process where the court would appoint a guardian for Bil.  To put it mildly, it would not be something any of us would want for Bil.

So we hired a lawyer, up where we live (at the time, Bil lived about 150 miles away), to help us through the guardianship process.  

The guardianship process we underwent that year is something called an Article 17A guardianship.   From what we have found, it is not  do it yourself process, although you can do it (technically) without legal help.  We chose to use a lawyer.  There are two other ways to gain guardianship in New York, which we are not familiar with at all.  Again, we aren't legal people.  Do not consider this as advice.

For us, the guardianship application was a slow process, and it is obvious that New York State wants to have safeguards in place for the person you are seeking guardianship of.  Think about it - a person in New York is assumed to be competent once they turn 18 and become adults.  The court wants to know a person is not competent before it grants a guardianship. You don't want to take the right to make decisions away from a person who is capable.

We had to give the court a lot of personal information about the proposed guardian and people living with him/her, and standby guardians, including addresses going back over 20 years. 

We had to get statements from two professionals giving information about Bil.This took a while.

The court wanted an original birth certificate for Bil. This became its own mini-nightmare.  IF YOU DON'T HAVE AN ORIGINAL OR CERTIFIED BIRTH CERTIFICATE IN YOUR POSSESSION OR DON'T KNOW WHERE IT IS, YOU MAY WANT TO CONSIDER GETTING ONE.  NOW. (The difficulties we went through for what should have been a simple process would be a good topic for its own mini-post.)

In the middle of this, my mother in law was diagnosed with cancer. There would have been a way to speed up the process if it had been needed. Thank heavens it wasn't, and my mother in law's prognosis remains good.

Several months (and several thousands of dollars later), my husband, myself, and other interested parties stood before a judge in the Surrogate Court where Bil and my mother in law lived.  The judge asked my mother in law if she agreed with the naming of my husband as "Bil"'s guardian.

She did.  The judge said he would rule and dismissed us.  After months of preparation, the hearing took just a few minutes.

But having a guardian, sometimes, isn't enough.  In some ways, it turns out being a guardian doesn't give you much power - just much responsibility.

Even in a natural disaster, which we are hopeful we will avoid.

Just another step on the Journey through the Unknown- my theme for the Blogging from A to Z Challenge.


  1. Hi - I hope the flooding doesn't cause either of the families a problem and you can find refuge somewhere if needed. It must be a real commitment to be a guardian to someone ... but an essential to help someone who so obviously needs some guidance through life. Good for you both - cheers Hilary

    1. It turned out not to be a major flood. But the anxiety is always there.

  2. What a brilliant theme and so useful to others who might need to start considering such matters. My in-laws are getting to the stage where they need support and help and some passing over to my husband of responsibility before they get into problems but as you say it is the responsibility that weighs quite heavy. Lovely to meet through the challenge :)

    1. Lovely to meet you also. My husband also has an aging parent - a lot of responsibility. Thank you so much for stopping by!

  3. I never thought about this before. Parents need to make plans.

    If you are interested in genealogy, Stop by for a visit: From 1840 to 1880, GERMANS were the largest group of immigrant

    1. Parents do need to make plans. Alas, Bil's never did. But many parents do. My late best friend, incidentally, was of German descent.


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