What is Guardianship?

In New York State, everyone who turns 18 is automatically assumed to be legally competent to make decisions for themselves. Guardianship is a court process of appointing an adult to make medical and/or financial decisions on behalf of an individual (a “Ward”). Guardianship is commonly used for minors and persons with special needs who cannot make those decisions for him or herself. However, adults of any age may need a Guardian appointed due to incapacity. Incapacity can happen due to an injury such as a stroke, coma, or TBI, disability, or a disease such as Alzheimer’s or severe mental illness. Guardianship can often be avoided through proper Estate Planning including Powers of Attorney, Health Care Proxies, Living Wills, Last Will & Testaments, and Trusts. A Guardianship proceeding is often an invasive court process and can be costly, especially if it is contested.

Types of Guardians in NY
A Guardian may be appointed to manage all aspects of an individual’s life or only certain aspects.
A Guardian of the Person is appointed to make life decisions such as care, education and welfare decisions.
A Guardian of the Property handles financial decisions including managing money, investments, savings and expenses. Typically this type of Guardian must file annual accountings required by the court.
A Guardian of the Person and Property makes both health care and financial decisions.
A Guardian ad litem is assigned by a Judge to act for a person during a court case when they cannot defend their rights or protect their own interests.
Guardianship can be temporary or permanent. Guardianship can also be challenged or contested.

guardianship-childGuardianship of a Child
A person under the age of 18 may need a legal Guardian if their parent is unavailable, incapacitated or deceased. A legal Guardian has the same power as a parent to make decisions for the child. Both Surrogate’s Court and Family Court can appoint a Guardian of the person for a child. However, if a child need a Guardian of the Property then the petition must be filed in Surrogate’s Court. A Guardian of the Property is appointed, for example, if a minor inherits over $10,000. The Guardian would be responsible for managing the money until the child turns 18.  In some contested Guardianship cases, the Judge can appoint a Guardian, even if the parent disagrees. Guardianship of a child typically lasts until the child turns 18 years of age.

A Guardian can be named by the parents of a child in their Will. This person becomes the legal Guardian only after the parent dies and the Judge at Surrogate’s Court approves the named individual as Guardian. It is important for parents to select a Guardian after the birth of a child to ensure that their wishes are carried out if something were to happen. Named Guardians can be changed or updated in the planning documents as life circumstances dictate.

guardianship-specialneedsArticle 17-A Guardianship – Persons with Special Needs
An Article 17-A Guardianship is for those individuals who are “intellectually disabled or developmentally disabled” and is administered through the Surrogate’s Court. A certification from one physician and one psychologist or two physicians must be filed with the court petition certifying that the person has a disability and is not able to manage his or her affairs. An Article 17-A Guardianship is very broad and covers most decisions that are usually made by a parent for a child such as healthcare and financial decisions.

It is important for parents of children with disabilities to file for Guardianship as their child approaches 18 years of age. The level of Guardianship should match the person’s ability to make decisions on their own. The Special Needs Planning attorneys at the Herzog Law Firm can assist with Guardianship, supplemental needs trusts and future care planning for persons with disabilities.

guardianship-alzheimersArticle 81 Guardianship – Adults
Without a valid Power of Attorney and Health Care Proxy, an Incapacitated Person who needs some help to care for themselves or manage their financial affairs needs to have a Guardian appointed. Despite popular belief, a spouse or parent does not automatically have these rights. Anyone can petition the court to appoint a Guardian. This kind of Guardianship case is brought in Supreme Court or County Court under Article 81 of the Mental Hygiene Law. Because these type of cases are complex, it is highly recommended that you use an attorney experienced in Guardianships.

In Guardianship cases, the rights of the individual are taken away and given to a Guardian. To help ensure that Guardianship is in the best interest of the individual, the court will appoint an evaluator. The court evaluator will meet with the alleged incapacitated individual, investigate and report whether or not a Guardian should be appointed and, if so, what powers the Guardian should have. At a court hearing, the evaluator will present his or her report, the petitioner must present clear and convincing evidence that the incapacitated person is incapable of managing certain aspects of their personal and/or financial affairs, and anyone who has filed opposition papers will be given an opportunity to be heard. Typically family members or close friends are given preference when the judge determines who should be the Guardian. However, if family members are fighting, or no one wants to serve as Guardian, the court can appoint an independent Guardian. Most guardianship proceedings can take several months, but in emergency cases, a temporary Guardian may be more quickly appointed. Because a Guardian has such a critical role, it is also important to monitor his or her actions for alleged abuse or fraud.

The attorneys at the Herzog Law Firm can help determine what type of Guardianship is most appropriate and help you navigate through the Guardianship process. We can also help explain your rights and duties, file documents necessary to challenge a Guardianship petition, help modify the terms of a Guardianship, or do planning to maintain eligibility for government benefits. Contact us for a free consultation.

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