A guardianship is a court approved legal arrangement in which a responsible person is appointed to make decisions on behalf of a person who is not capable of making their own decisions. A guardian can be empowered to make healthcare decisions, financial decisions, manage day-to-day household matters, or all the above. The powers granted in each case depend on the specific needs and capacity of the person who is the subject of the guardianship.
Experienced guardianship lawyers at Ely J. Rosenzveig and Associates will answer all your questions about guardianships and guide you through a process customized to the needs of the person you wish to protect.
When those we love are unable to care for themselves, either in their daily personal care or in their financial dealings, New York law provides a mechanism to authorize a responsible party to manage matters that are beyond the capacity of the individual in need of help. Legal guardianship might be the answer you and your family are looking for.
Does someone in your family need help managing their banking, bill paying, household affairs, healthcare decisions, or personal activities of daily living? Do you have a child or relative whose developmental disabilities leave them dependent on others? Is there an elder member of your family displaying persistent signs of confusion, forgetfulness, or other possible symptoms of a dementia-related condition?
There are three (3) types of guardianships provided for under New York law. One type of guardianship provides for the needs of children (legal minors) under Article 17 of the Surrogate’s Court Procedure Act, and another provides for the needs of children and adults who are intellectually or developmentally disabled. This is called a 17A Guardianship because it was created by Article 17A of the Surrogate’s Court Procedure Act, and is administered by the Surrogate of the county where the disabled person resides.
The third type of guardianship under NY law provides for the needs of adults who have been able to manage their own personal and financial affairs, who, through diminished capacity, are no longer able to do so. This is called an Article 81 guardianship for an alleged incapacitated person (“AIP”). It is governed by New York’s Mental Hygiene Law, Article 81, and it is administered by the Supreme Court of the State of New York in the county in which the AIP resides. It provides for guardianships granting limited powers to manage only those matters the needs someone to handle. For example, a person may be unable to manage their own financial affairs, but they may be capable of making their own health-related decisions.
A petition to appoint a guardian must be filed in court explaining the facts involved and the person’s specific incapacity. The court will appoint a neutral evaluator to investigate the circumstances of the case and submit a report containing their conclusions and recommendations. The petitioner and those supporting the petition for guardianship will be heard, as will those, if any, who are opposed to the petition. Of course, the court will accept any input from the allegedly incapacitated person himself / herself, if they are able to participate in the hearing.
The court needs to find “by clear and convincing evidence” that the guardianship is required in light of that person’s incapacity to manage their own personal or financial affairs.
If the incapacitated person already had an estate plan, living will or trust, powers of attorney, or healthcare proxy documents signed in advance, then the person they nominated in those papers would be the court’s preferred choice if they were otherwise able to assume the responsibilities of a guardian. Otherwise, a parent, child, sibling, other family member, or interested petitioner could become guardian if approved by the court.
Note that having a power of attorney and health care proxy in hand may obviate the need for a guardianship appointment altogether, one more reason to have these documents done as part of a responsible, and cost effective estate plan.
Parties who cannot become guardians are people or entities who are the person’s creditors, a health care provider’s employer, or a daycare or other service provider with a financial interest conflicting with the incapacitated person.
Bond Requirement — The prospective guardian is required to obtain a bond to secure their competent and honest management of the incapacitated person’s assets. If neither the family, the petitioner, nor the nominated person can qualify to obtain a bond, the court will appoint a guardian from a list of competent guardians maintained by the court. There are also circumstances when bond requirements may be waived on application to the Court.
When an adult who previously managed all their own affairs suffers an injury or illness and becomes incapable of making some important decisions, a petition is filed in the appropriate New York court seeking appointment of a guardian with only the limited power necessary to meet the specific incapacity of the adult. Alzheimer’s or other dementia-related conditions often lead families to seek this type of guardianship.
Article 81 also provides for temporary guardianships. When circumstances require urgent action, a temporary guardianship may be required to facilitate immediate decisions. For example, if a parent is incapacitated for a period of time, the court will appoint a guardian for the child until the parent recovers. A guardian may also be empowered to manage finances for a minor who receives proceeds from a lawsuit or a large inheritance.
Every case presents unique facts and relationships needing a guardianship lawyer’s expertise. Depending on the particular circumstances of each case, your lawyer’s experience handling family law and probate court matters will determine the appropriate New York court in which to file your guardianship petition.
This form of guardianship is intended to provide proper care and management of the person and property of a minor whose parents have died, or are unable or unwilling to provide same (SCPA Article 17)
This type of guardianship is created for people living with intellectual, or developmental disability caused by “cerebral palsy, epilepsy, neurological impairment, autism or traumatic head injury or any other condition closely related to [developmental or cognitive disability] resulting in impairment of general intellectual function or adaptive behavior.” (SCPA Article 17-A)
As noted above, everyone who expects their decision-making capacities to be limited in the future can take steps to draft legal documents, like a healthcare proxy or a power of attorney, granting someone they choose to exercise power over decisions when they’re unable to make their own decisions.
The attorneys and staff at Ely J. Rosenzveig and Associates have the experience, know-how, and sensitivity to guide you through the complex morass of guardianships and advanced directives to protect yourselves and your loved ones, and ensure your good care, health and welfare, come what may.