Can the court order of a guardianship be modified? New York. The guardianship is for an incapacitated elderly parent.

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Customer: Can the court order of a guardianship be modified?
JA: What state are you in? Guardianship law varies by location.
Customer: New York
JA: Do the biological parents consent to the guardianship?
Customer: The guardianship is for an incapacitated elderly parent
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: This guardianship has been in effect for about twenty years and because of the financial limitations applied to the guardianship it has become difficult to take actions that revolve around caring for the incapacitated person in question. I am wondering if at all the orders or rules can be modified or changed in any way at all so more can be done to better the incapacitated person. I also want to know if anything at all can be done to help the incapacitated person's daughter because the guardianship itself has negatively impacted the incapacitated daughter's financial well being
Answered by StephenH129 in 9 mins 2 months ago
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StephenH129
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StephenH129, Expert

Hello! Thanks for using JustAnswer. My name is ***** ***** I am an attorney ready to answer your questions with top-quality service. Just a few quick things before we get started:

I’m sorry to hear you are having these problems with your legal issue. I know that can be frustrating. However, we can get this resolved quickly;

I will respond as quickly as I can, but there may be an occasional delay. Thank you for understanding.

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StephenH129, Expert

You are asking if you can modify a guardianship?

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StephenH129, Expert

Absolutely.  If things have changed, you need to petition the Court for a modification.  Living arrangements, expenses and life happens in 20 years.  Modification is common.

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StephenH129, Expert

Why has the daughter been impacted?  Recouping those funds depends on the reasons and facts in place.

Customer
The original conservator was the daughter's father but he had passed away. She was nineteen and without work but took it up on herself along with her uncle to take the position of co-guardian to her incapacitated mother. She has been the mother's co-guardian alongside her uncle for twenty years and during that time has struggled to find work while trying to manage things, including an ol in the guardianship. The lawyer who works for her incapacitated mother is non communicative and has been grossly negligent in regards ***** ***** timely with the commission and so with her struggling to find work while maintaining her duties as a guardian and upkeeping of the IP house, and having a lawyer that she cannot reach out to for advice or to ask questions has proven to be difficult. Her uncle had hired this lawyer and unfortunately he now is elderly and unable to take the steps needed to replace this lawyer.
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StephenH129, Expert

You can ask the Court for some compensation.  I am sorry this is happening.  It would be up to their approval.  The modification is the easy part.  Asking for 20 years worth of compensation may be a problem.

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StephenH129, Expert

I'd strongly recommend speaking to a local attorney here for representation.  You are going to want assistance.

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StephenH129, Expert

Customer
I can look into that but right now my biggest concern is obtaining a lawyer that can and will petition to modify the court order. The Court order is literally 20 years old and to be limited to a spending of only $1000 is very restrictive. The current lawyer in place is incredibly negligent so I wonder how long it would take to acquire a willing lawyer to get on the case of petitioning to modify the guardianship? I also wonder is it possible to have the guardianship terminated all together even if the incapacitated person cannot consent? I ask this because the court involvement is an arduous process and there are a number of things that need to be changed and they need to be changed immediately not in several months if that
Customer
Also must it be a local attorney or a guardianship attorney that I must get into contact with?
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StephenH129, Expert

I can not speak for another attorney.  I can not say.  I see no reason this has to be difficult but it all depends on the attorney you choose.  I would call around.  A modification is fairly easy.  No, you'd need capacity or death for the guardianship to be terminated sadly.  I am sorry.  Once a guardianship is done, they can be very difficult to get rid of, as you have seen.

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StephenH129, Expert

A local attorney who practices with guardianships.  A probate and estate attorney would be where I start looking.

Customer
I understand. I have been looking into estate planning attorneys because that is something missing from the order that I am very concerned with. I've also been told that as the only child that in regards ***** ***** court it would all go to the only child however my concern is how long would that take? I have spoken to a couple of attorneys in the past and none of them have been transparent enough with an estimated date or time for how long it takes for probate court to set everything in motion and pass things on to the heir. I've also wondered if I need everything writing in order for this to be realized?
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StephenH129, Expert

Probate normally takes 12-18 months.  Depends on the assets in question.  It can be quicker with only one heir.  What do you mean by in writing?  Like a Will?

Customer
Now I see why so many people prefer to avoid probate court. However this guardianship was set up after my birth. Going into this at the age of nineteen I was not made aware of how what could be done or requested outside of the order. I think it's really depressing that guardianships cannot be ended unless the incapacitated person passes on but if it can be modified then I wonder if at all, would I be able to request for a gift? I read somewhere that this goes into estate planning but because my mother cannot speak or write on her own I don't know if gifts can be applied to the only child. Or if such a thing can be requested to be added into the court order if the court were to know how much this guardianship has negatively impacted my life? Yes, I also wonder if a will is necessary to speed up the proceedings of probate court? Because if a year or more is the most I would have to wait or six months at the least that is still a long time to wait while bills and taxes would need to be paid and to deal with the more distressing matter of grieving and burial costs, when the time for that comes.
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StephenH129, Expert

You could try but the party lacks the capacity to make a gift.  I see that as unlikely.  I am sorry.  An incapacitated party can not make a will, again, lack of capacity.  You would be stuck with probate.  What I would do during the lifetime is make sure the assets have payable on death, terminate on death or joint beneficiaries.  Anything in the category is outside of probate and not subject to an estate.  Debts, taxes and costs of the estate are paid during the estate itself.  Those concerns should be covered.
Customer
Okay so I will keep that in mind
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StephenH129, Expert

Sounds good.  Anything else I can help with or clarify?

Customer
When you say I need to find a local are
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StephenH129, Expert

Local to the case itself.  Not technically local to you.

Customer
What is the State Bar Association?
Customer
Okay and local to the case itself is what you meant. Thank you for clarifying
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StephenH129, Expert

The state bar.  It registers all attorneys for the state you are in.

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StephenH129, Expert

Customer
Okay. Thank you so much for the links as well as the advice you have given. I will take a look at these links that you have sent me. I do wonder though. Though my mother is incapacitated she has spoken before. It is rare for her to speak but if she were to ever be able to speak up and say she didn't want the guardianship to be in effect would that have any way of terminating it? I ask because I have read somewhere that giving consent or not can have an effect on if a guardianship stays active or not
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StephenH129, Expert

Not likely.  You'd need a medical opinion that she is competent to end it.  I do not see that being possible here but I am not a doctor.  I'd speak to her physicians.

Customer
I understand. I just wanted to clarify if whether or not such capacity to where the person can speak would actually count
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StephenH129, Expert

It can help but would not be enough alone.

Customer
Okay I understand
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StephenH129, Expert

Sorry again.  Thank you very much.  Take care now.

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StephenH129, Expert

I hope I was able to answer your question. If you would like to ask me another question in the future, you can add me as a favorite Expert. You'll have the option to do that on your "My Questions" page if you choose to rate our interaction or you can request me by name if you wish. Thank you very much for using JustAnswer. Take care now.

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