Legal Question in Wills and Trusts in New York

Re: Guardianship for mentally ill

He should resign and have the court appoint the new guardian. Suggest they use an attorney.

Re: Guardianship for mentally ill

The proper term when someone is over 18 years of age is conservatorship. I am not quite sure if your dying uncle already has a conservatorship for your mentally ill aunt. If he does, the other aunt should petition the court to be named as the new conservator. If there is no conservatorship, your other aunt should petition the court now to be named conservator for your mentally ill aunt.

Re: Guardianship for mentally ill

If your uncle was formally appointed as Guardian of his sister, he should apply to the Court where he was appointed to be relieved and to have the other sister replace him. If his care has been voluntary and he has not officially been appointed, he should have the other sister apply, and give an Affidavit to assist her appointment. Since the children are technically entitled to first appointment, as closest next of kin, the information about their lack of concern or contact with their mother must be included in the application. I suggest using a local attorney familiar with guardianship and elder law matters and who might be familar with the Court where the application is to be made. In view of the uncle's health, this should be done promptly as his testimony may be critical to an appropriate appointment. Approval by the Court for documents such as a Health Directive and a Power of Attorney should also be elicited as part of the application.

Re: Guardianship for mentally ill

I suggest that your uncle establish a trust for the benefit of his wife and appoint either you or your aunt willing to care for his wife as trustee or both of you as co-trustees. The co-trustees would have the power to invade the trust principal for her needs. Anything left at her death could be left to whomever he chooses. He may wish to specifically disinherit his children. Any thing in his name should be placed in the trust. Anything jointly held with his wife needs to be placed in the trust also. Because your aunt is mentally ill, she is probably not competent to make a will, so nothing should be left to her outright, only in a trust.

My comments are based on treating your question as a hypothetical. Accordingly, my comments could be substantially and materially different were I advised of all of the relevant facts and circumstances. My comments are by necessity general in nature, and should not be relied upon in taking or forgoing action in your circumstances without retaining an attorney. In order to fully explore your legal matter, you should meet with me or another attorney and bring to any such meeting all relevant documents and correspondence, and any other relevant facts.

I am not hired to be your attorney, and no attorney-client relationship exists between us, unless and until you enter into a written retainer agreement with me, tender the agreed amount for a retainer and it is accepted by me. I reserve the right to decline representation should circumstances change.

As you are aware, in New York there are various deadlines for filing a complaint, filing an answer to a complaint, or taking other action in order to preserve your legal rights, and avoid a complete loss of those rights. You should retain counsel immediately in order to be fully advised of your rights, and to be fully informed of the applicable time period within which those rights must be asserted. If you were to delay in doing so, it might result in your potential cause of action being forever barred.