May 3, 2021 What are the Types of Guardianship in New York State?
What is a Guardianship?
Guardianship is a legal arrangement where a judge gives an individual the legal right to make decisions for another person who is unable to make decisions for themselves.
In a guardianship, one person has the legal right to make a decision for another person. The guardian is the person appointed by the court who has the legal authority to make decisions for another in their best interest, and for their welfare.
The ward is the individual for whom the guardian makes the decisions. A ward may not have the cognitive or communicative capacity to make decisions for themselves or be able to give informed consent for personal, medical, or financial affairs.
What are the Different Types of Guardianship in New York?
Guardianship of a Child (Article 17 Guardianship)
The rules and regulations for this type of guardianship are detailed in Article 17 of the Surrogates Court Practice Act (SCPA). It can be ordered for a child who’s 17 years old or younger (under 18) and not married or in military service. The guardianship lasts until the child turns 18 years old. A legal guardian has the same authority as a parent to make decisions for the child. This typically arises when the child’s parents are deceased, or are unable or unwilling to care for the child.
A guardianship of a child can be over the child’s “person” and/or the child’s property. A guardian of the person is able to make life decisions for the ward, such as those concerning health care, education, and those issues affecting his or her personal and physical well-being. The petition can be filed in either Surrogate’s Court or the Family Court, and either court can appoint a guardian of the person for a child. However, if a child requires a guardian of the property, the petition must be filed in Surrogate’s Court.
A guardian of the property has the authority to decide questions about the ward’s money, investments, and savings, as directed by a judge. This guardian is required to file an annual report with the Court about his/her management of the property.
If a child under the age of 18, who has no parents, or who has parents unable, unwilling, or incapable of caring for them, gets more than $10,000, either from the estate of someone who died, a life insurance pay-out, a personal injury settlement, or from some other source, a petition for guardianship of the property must be filed in Surrogate’s Court. The guardian of the property keeps the money safe until the child turns 18 years old. The funds are controlled jointly by the Court and the guardian; no money can be withdrawn without a court order.
A guardian of the person and property is responsible for both the ward’s life decisions and his or her property interests.
Guardianship of an Incapacitated Adult (Article 81 Guardianship)
An Incapacitated Person (AIP) is an adult (older than 18) who requires help in taking care of their personal needs and/or managing their property or financial affairs. This type of guardianship case is brought in Supreme Court under Article 81 of the New York Mental Hygiene Law (NYMHL).
Guardianship of Developmentally Disabled Person (Article 17-A Guardianship)
If a person is “intellectually disabled or developmentally disabled” and has difficulty making decisions for themselves, a petition can be brought in Surrogate’s Court to appoint a guardian for that person. This petition is brought under Article 17-A in Surrogate’s Court.
In some cases, a judge will assign a Guardian Ad Litem (GAL) to help an individual in a court case to protect his or her rights and interests.
How Do I Apply for Guardianship?
In New York State, a guardianship case is handled by the Family Court, Supreme Court or Surrogate’s Court depending on the type of guardianship asked for and the ward. Anyone can apply to be a guardian if they are at least 18 and a legal resident or citizen of the United States. A judge has the final say and will approve the appointment of a guardian.
A guardianship case begins with the filing of a petition. Usually, a petition for guardianship is filed by the child’s parents, another adult, or a social services agency. Next, there is a court hearing where evidence is presented demonstrating why the petitioner believes a guardian is necessary. The judge will then appoint a guardian by issuing “letters of guardianship” that specifically states the legal authority of the guardian.
Contact an Estate Planning Attorney for New Jersey, White Plains or Westchester
Our firm’s principal partner, Ely J. Rosenzveig, has over 30 years of estate planning experience, including extensive work with a full range of guardianship appointment. He and his team of skilled attorneys are ready to help you create a comprehensive estate plan, and address your particular guardianship needs, tailored to your specific situation. Call us at (914) 816-2900 or email [email protected].