Guardianship is a legal arrangement where the court gives a person the legal right to make decisions for another person who is unable to make decisions for themselves. Most people hear the word guardianship and think about young children, maybe in a divorce case.
Guardianships are commonly associated with young children or other dependents. However, it isn’t just children who need named guardian’s. Sometimes, adults require guardians, as well. Cara Law focuses on these types of “adult” guardianships.
An incapacitated adult is someone who has been found to be unable to manage daily tasks, like managing finances or making medical decisions. An adult's incapacity must be legally determined by a Court through a guardianship proceeding.
Sometimes, a guardianship is needed to protect a child who is about to turn 18 and suffers from a physical or mental issue that makes it difficult for them to manage their care. Guardianship proceedings are often brought by a concerned parent or family member who wants the ability to continue caring for a child who is now becoming a young adult.
Often guardianship proceedings are brought to protect the interests of an elderly person who either did not create an estate plan including advanced directives, like a health care proxy or power of attorney or who appointed someone who is no longer available to assist them.
Guardianship Proceedings are brought as part of personal injury settlements or verdicts when the person about to receive the funds is not able to manage their finances. This also happens when someone who cannot manage finances inherits from a family member who may not have included provisions for disabled beneficiaries.
A Guardianship Proceeding asks the Court to appoint someone who is concerned for the welfare of the disabled or incapacitated person, to appoint them or someone else to acts as the person’s guardian.
- The Petitioner - The person who brings the guardianship proceeding to court.
- The Alleged Incapacitated Person (AIP) - The person who needs help.
- Counsel for the Petitioner - The attorney representing the petitioner.
- Counsel for the AIP - An attorney represented to represent the interests of the individual who is the subject of the proceeding.
- The Court Evaluator - A qualified person appointed by the court to investigate the nature and merits of the guardianship matter.
Once the court agrees that the AIP requires the assistance of a guardian, the parties become:
The Guardian - The person appointed by the court to provide necessary decision making for the AIP.
The Ward - The person (the AIP) who requires assistance. They may also now be designated as a Person in Need of a Guardian or an Incapacitated Person.
There are several types of guardianship arrangements that may be requested by the Petitioner, including:
Guardian of the Person - A person who can make life decisions for the ward like health care, education and welfare decisions. This person may be able to find or change housing, arrange medical appointments, speak with doctors, hire home care and nursing services.
Guardian of the Property - A person who handles decisions about the ward’s money, investments and savings. This person, under the supervision of the court, is responsible for paying bills, “marshaling” or collecting assets, protecting investments and income.
Guardian of the Person and Property - a person or people appointed to provide both types of assistance.
Under New York Law, guardianship cases can be brought in many cases, such as
Article 17 Guardianships - Brought when a child under the age of 17 inherits money or no longer has parents able to care for them. These cases are heard in the Surrogate’s Court of the State of New York under Article 17 of the Surrogate’s Court Procedure Act and usually last until the child turns 18.
A legal guardian has the same power as a parent to make decisions for the child. A child may need a legal guardian if the parent is unavailable. For example, the parent dies, is in military service and abroad, was deported but the child remains in the U.S., or is too sick to take care of the child and can't make decisions for the child anymore.
If a child receives money of over $10,000 from someone who has died, such as from a life insurance policy, personal injury settlement, or some other way, a petition for guardianship of the "property" must be filed in Surrogate's Court. The guardian of the property, usually a parent, safeguards the money until the child turns 18 years old. The funds are jointly controlled by the Court and the guardian and no money can be taken out without a court order. For more information, contact your county's Surrogate's Court.
Article 17-A of the Surrogate’s Court Procedure Act is reserved for those who are intellectually or developmentally disabled and are over the age of 18. In New York State, when a person turns 18 years old, they are assumed to be legally competent to make decision for themselves. This means no other person is allowed to make a personal, medical or financial decisions for that individual, including parents or guardian's. If a person is intellectually or developmentally disabled, has difficulty making decisions for themselves and are over 18 years old, you can ask the Surrogate's Court to appoint a guardian for him or her.
A certification from one physician and one psychologist, or two physicians, must be filed with the petition certifying that the person has a disability, and is not able to manage his or her affairs because of intellectual disability, developmental disability or a traumatic head injury. The Surrogate's Court can appoint a Guardian of the Person, the property or both.
Article 17-A Guardianship is very broad and covers the majority of decisions that are made by a parent for a child, such as financial and medical decisions.
Article 81 Guardianship Proceedings are controlled by Article 81 of the Mental Hygiene Law and are brought in Supreme Court. An Article 81 Guardianship is very individualized and specific to what decisions are made by a guardian, and what decisions can be made by the person with the disability. The Judge will appoint a Court Evaluator. As the eyes and ears of the Court, 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. The Court will always hold a hearing. It is generally recommended to have a lawyer handle this type of guardianship case.
In all matters, once a Guardian has been appointed, their actions are supervised by the Court and a Court Appointed Examiner. Guardians of the Property are required by law to file annual accounts, detailing their use of the ward’s finances. This accounting is reviewed and approved by the Court Examiner, who reports their findings to the court. The Court Examiner also plays a pivotal role in making sure the Guardian complies with all of their responsibilities, such as becoming certified, taking necessary courses, acting within the rules set out by the court in it’s order appointing the guardian and filing reports on time.
How to find out if someone needs a guardian
A consultation with a qualified attorney, such as Jackie Cara Law, can help you sort through whether guardianship is the right choice for your situation. In some cases, filing for guardianship is necessary and there are no other options. While in many others, the family, or another concerned party of the individual who is the subject of the proceeding, have tried everything and need someone to help decide what, if any, other options are available.
Guardianship is a serious appointment. The courts do not take guardianship petitions lightly. Having a guardian appointed for a person means some of that person's rights are curtailed. The evidence presented showing why a person needs a guardian must be clear to the court.
Guardianship Proceedings are brought in many different kinds of cases. Most often, proceedings are brought when an elderly person can no longer care for themselves but no longer have family to help. The same is true for people with disabilities that may prevent them from making good decisions or who may have become vulnerable when their caregivers have passed away.
In more difficult circumstances, guardianships are brought when a friend or family member has become at risk of homelessness, is suffering from severe mental illness or has substance use disorder.
Guardianship matters are often contested, which means someone related to the proceeding, objects to the appointment of a guardian, or the person who has been named the guardian.
What to expect when you are involved in a guardianship proceeding
While guardianship is a very specialized area of the law, a guardianship proceeding is still litigation and requires an extensive filing with the court. That filing is called the Petition. The Petition is basically, the petitioner’s explanation to the court about why they believe the subject of the guardianship needs a guardian.
The court, after reviewing the petition, appoints a Court Evaluator, who is an investigator into the subject of the guardianship. Court Evaluator’s prepare a detailed report to the court explaining whether or not they believe the subject of the guardianship needs a guardian, what kind and who should be appointed. A Court Evaluator is likely to ask financial questions, inquire about relationships and look into the background and experience of the petitioner for guardianship.
Sometimes, the court also appoints counsel for the Alleged Incapacitated Person (AIP) to represent their interests in the litigation. Counsel to the AIP is tasked with telling the court what their client wants and doesn’t want to have happen in the guardianship.
The court will make a determination as to whether the AIP is able to appear in court or not or whether the court must visit the AIP where they live. Once these people have been appointed and the court has made its decision, a guardianship hearing will be held.
Jackie Cara Law has helped many families set up proper guardianships, and can help you, as well. We will answer your questions and tell you what your different options are.
If you are the parent of a developmentally disabled child who is over 18, or you have an elder loved one who has become incapacitated, give us a call to discuss setting up a guardianship for them today.
Sadly, a good number of guardianships are filed when someone has taken advantage of the person in need of a guardian.
It is important to speak to an attorney if you believe someone you care about can no longer care for themselves or are at risk of harm as a result of their incapacity.