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A client lives in Virginia, her mother is domiciled in Buffalo,

NY but now lives with...
A client lives in Virginia, her mother is domiciled in Buffalo, NY but now lives with my client in VA. The client would like to care for her mother, but she is senile and believes everyone is out to get her. Hence, it becomes difficult to convince her to make financial and medical decisions that would be good for the mother.

How does my client go about becoming her mother's legal guardian and should she file in NY or VA?
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2/1/2013
Roger
Roger, Attorney
Category: Family Law
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Hi - my name is XXXXX XXXXX I'm a Family Law litigation attorney. Thanks for your question.

As long as the mother has lived in Va. for at least 6 months, the daughter can file for a conservatorship over her mother in Va. However, if her mother has not lived in Va. for at least 6 months, the daughter would either have to wait until 6 months have passed or file in NY.

If the mother and daughter are going to remain in Va. for the foreseeable future, it is much better and probably easier for the conservatorship to be filed in Va. In order to obtain conservatorship, the daughter will have to file a petition and ask the court to appoint her as conservator to attend to her financial, medical and everyday needs. Usually, it is required to prove that the person (mother) is not mentally competent, which can be done with testimony from her treating physician who has made a diagnosis of some mental disorder.

As long as the doctor says that the mother is not capable of caring for herself and needs a conservator, the court should award it and appoint the daughter as conservator. This would give you the right to act on your mother's behalf and in her best interest.

Roger
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Customer reply replied 4 years ago

Thank you. The mother has property in Buffalo. Would that change things? Exactly which court should she file in NY and which one would it be if it were in VA? Also, the client has siblings, does she need affidavits from them agreeing that my client should be the one to take care of her? What happens if someone wants to contest that?

No, it wouldn't make any difference that she owns property in New York. Her residence is the main factor.

If the daughter were to petition the court for conservatorship, she would have to notice the other siblings of the filing and they would have a right to object to the petition/contest it.

If someone contests the petition, the person would have to show why it is not in the mother's best interest for the daughter to be appointed. Then, the judge will have to weigh the facts/evidence and determine what is in the best interest of the mother.

If the children are in agreement, they could all file joinders in the petition, which is basically an affidavit stating that they approve of what the daughter is doing.

As for the courts, in Virginia, the case would likely be filed in the circuit court of the county of the mother's residence. If filed in New York, the petition would be filed in the Erie County Family Court.

Roger
Roger, Attorney
Category: Family Law
Satisfied Customers: 31,885
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Customer reply replied 4 years ago

How long does the process take in each state?

That I can't say for sure. It would depend on the court's docket (how long it takes to get your case before the court), scheduling with the physicians, etc. However, you're probably looking at 6 months or so.
Roger
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Category: Family Law
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Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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