Legal Question in Wills and Trusts in New York
Mentally Handicapped Brother
My younger brother has Bipolar and ADHD. He is 24 yrs. old. He is constantly being put in the hospital for trying to harm himself. He is also in trouble with the law frequently. He is recieving Social Security and my mother is his rep payee. As it was determined that he isn't capable of handling finances.
We are deeply concerned about his welfare. What can my mother do to gain Power of Attorney, because my brother won't do it willingly. And we are concerned that he is going to hurt someone or himself unless we can force him back into the hospital, where he will recieve treatment, medications, and counseling.
3 Answers from Attorneys
Re: Mentally Handicapped Brother
What you need to do is petition the Court to declare your brother "incompetent" and in need of a guardianship. YOu will need a qualified phyisicain to present evidence in this respect. If a judge agrees he will order that a person act as guardian to your brother. A guardian will be responsbile for his finances but will have to provide an accounting to the court once a year to insure that the proceeds are not being stolen, or otherwise used wrongfully.
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Re: Mentally Handicapped Brother
There is a process in NY for an involuntary commitment to a psychiatric hospital. It requires the certification of two physicians that your brother is a danger to others or to himself.
If this is not feasible, or if he gets arrested, you can ask the police or the court to refer him for psychiatric evaluation.
Re: Mentally Handicapped Brother
A suit to declare him "incapacitated" is necessary, supported by medical affidavits and, possibly, testimony at a hearing. This may be a 2-part application: guardian of the person (one who can make medical decisions) and guardian of his property (to handle his financial affairs). Same person can be both. Be aware, he has the right to defend the suit and a guardian ad litem may be appointed by the Court to represent him. This can be costly, due to the need for expert medical, psychiatric reports.
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