For some individuals, legal protection and assistance remain necessary even after reaching adulthood. Guardianships are a legal arrangement that can provide essential support and decision-making authority for those who are unable to manage their personal or financial affairs due to age, disability, or other circumstances. Whether for a minor child or an adult who is incapacitated, a guardianship offers the support and oversight needed to protect their interests, ensuring that their rights and needs are met.
At New York Legacy Lawyers, our dedicated team of Brooklyn guardianship attorneys is here to guide you through the complex process of establishing guardianship. Whether you are seeking to become a guardian for a child or an adult, we offer compassionate and knowledgeable legal support tailored to your unique situation. Our New York estate planning attorneys also provide a wide range of estate planning services, including probate and Medicaid planning, to help protect your family’s future.
Contact us today at (718) 713-8080 to discuss how we can assist you in securing the legal protection your loved one needs.
Guardianship proceedings are essential legal mechanisms designed to protect individuals who cannot care for themselves due to various incapacities. These proceedings vary based on the unique needs and circumstances of those involved, from adults incapacitated by illness or injury to minors in need of financial oversight. Each type of guardianship—Article 81, Article 17A, and Guardianship of a Minor—serves a distinct purpose, ensuring that vulnerable populations receive the appropriate level of care and protection.
Article 81 Guardianship is a proceeding to appoint a guardian for an adult who has become incapacitated.
These individuals may have been injured in an accident, continue to suffer from an incapacitating physical illness or psychological disorder, or have some other condition that prevents them from caring for themselves. Elders with dementia or Alzheimer’s disease who have not appointed agents to make decisions for them in Advanced Directives (Power of Attorney and Health Care Proxy) nor created a Revocable Trust with Successor Trustees will often need to have an Article 81 Guardian appointed for them.
Article 17A Guardianship is a proceeding to appoint a guardian for a developmentally disabled person.
Guardianship of a Minor is a proceeding to appoint a guardian for a child under 18 years of age. This could be because the parents have passed away, if the child’s parents are unable to care for them or if a child inherits money over $10,000.
| Type of Guardianship | Details |
|---|---|
| Article 81 Guardianship | Proceeding to appoint a guardian for an incapacitated adult. This includes individuals who have suffered injuries, physical illnesses, psychological disorders, or other conditions preventing them from self-care. Elders with dementia or Alzheimer’s disease who have not made advanced directives or created a revocable trust may require Article 81 Guardianship. |
| Article 17A Guardianship | Proceeding to appoint a guardian for a mentally retarded or developmentally disabled person. |
| Guardianship of a Minor | Proceeding to appoint a guardian for a child under 18 years of age. This can occur when parents have passed away, are unable to care for the child, or when the child inherits money exceeding $10,000. |
In New York State, legal guardianship for adults is a crucial process designed to assist individuals who are unable to manage their own affairs due to incapacitation. This incapacity might be due to mental, intellectual, or other health-related issues that prevent them from handling their financial, property, or medical decisions.
Guardianship is tailored to meet the specific needs of each individual and is not applied universally to all incapacitated adults. It is regulated under Article 81 of the New York Mental Hygiene Law, which emphasizes that guardianship should only be considered when absolutely necessary to address the unique needs of the individual concerned.
The appointment of a guardian does not equate to control over every aspect of the incapacitated adult’s life. Instead, the guardian’s authority is limited to areas where the adult genuinely requires assistance. This selective empowerment helps maintain as much independence as possible for the individual, while providing necessary support in critical areas of life.
This process ensures that the rights and well-being of incapacitated adults are protected, offering them the necessary aid while respecting their autonomy and dignity. It’s important for families considering this step to consult with legal professionals who understand the nuances of New York’s laws on guardianship to address this important matter effectively.
Guardianship is a legal arrangement that places an individual, also known as a ward or incapacitated person, under the supervision of a guardian. There can be more than one guardian at any given time.
There are two main types of guardianship: guardianship of the person and guardianship of the estate or property; often an incapacitated person has both a guardian of the person and of the property.
A guardian is typically a family member, friend, or fiduciary appointed by the court. Ms. Feldman has served as a Court Appointed Guardian to a number of wards. An incapacitated person who would be subject to an Article 81 Guardianship is an adult who can no longer make safe and sound decisions about his or her own person or property. Additionally, a person who is prone to fraud or undue external influence may be placed under guardianship for protection in brooklyn.
Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:
Guardianships can be difficult especially for those who are not well-versed with the law surrounding guardianships in New York. Speaking to experienced attorneys for guardianship may be able to help you understand the process and what your next steps should be.
At New York Legacy Lawyers, estate planning attorney Yana Feldman and our team of attorneys for guardianship have years of experience helping clients navigate the guardianship process. We may be able to help you too. Contact us today to speak with our skilled team or attorneys.
In order to safeguard the protected person’s right to due process, he or she is provided with notice and is entitled to attend all legal proceedings related to guardianship. In addition, the protected person may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses. The judge will also appoint a Court Evaluator, who serves as an independent investigator and makes a recommendation to the Court. Ms. Feldman has also served as Court Appointed Counsel to the Allegedly Incapacitated Person as well as a Court Evaluator in both New York (Manhattan) and Kings (Brooklyn) Counties.
When seeking guardianship for someone believed to require assistance, the individual in question is referred to as the “alleged incapacitated person” (AIP). As the applicant initiating the application, you will be referred to as the “petitioner” and, if approved by the court, as the “guardian.”
The application for guardianship should include a comprehensive account of the AIP’s functional limitations. Subsequently, a judge will appoint an “independent evaluator” to assess the AIP’s condition and their ability to care for themselves. The independent evaluator could be a mental hygiene legal service representative, attorney, physician, psychologist, accountant, social worker, or nurse, chosen from an approved list.
Upon completion of the evaluation, the independent evaluator will submit a written report encompassing their observations and recommendations. Subsequently, a hearing will be scheduled, and if possible, the AIP will attend. If the AIP opposes the guardianship and lacks legal representation, the judge will assign a lawyer to advocate for their case.
During the hearing, both the petitioner and the AIP have the opportunity to present evidence regarding the AIP’s condition. In certain cases, a jury trial may be conducted to address the issues raised during the hearing, particularly if the AIP opposes the appointment of a guardian. The court will then make a decision on whether to appoint a guardian, taking various factors into consideration. A guardian will only be appointed if there is “clear and convincing evidence” of the AIP’s incapacity and the potential harm they may face as a result. Essentially, you must demonstrate that it is more likely than not that the person is incapacitated. The court’s objective is to establish a legal guardianship in a manner that minimizes interference with the incapacitated person’s life while maximizing their independence. As a guardian, you will be responsible for providing annual reports to the court regarding the AIP’s well-being and your management of their finances.
Contact New York Legacy Lawyers today to schedule a consultation with an experienced attorney for guardianship.
When preparing for a hearing, it’s important to keep in mind that each judge and courtroom operates differently, making it impossible to predict everything that might happen.
However, there are steps you can take to get ready for the hearing:
During the hearing:
Remember to consult a legal professional for specific guidance tailored to your situation, as laws and procedures can vary.
Speak to the experienced NY attorneys for guardianship at New York Legacy Lawyers. We may be able to help you understand your role in a guardianship case. Our attorneys for guardianship are also well-versed in the law surrounding estate planning and Medicaid planning in New York.
Contact us today to speak with a skilled NY attorney regarding your guardianship or estate planning concern.
Guardianship of the person grants authority over non-financial matters such as issues that impact the personal well-being of the protected person, including making important medical decisions.
The appointed guardian is normally tasked with the following responsibilities:
Guardianship of the estate or property empowers the guardian to make important financial decisions on behalf of the protected person, including:
The guardian will be required to report to the court about his or her activities on an annual basis.
Sometimes guardianship is a temporary arrangement, meant to protect an incapacitated individual until he or she regains capacity. Under New York State law, each guardianship arrangement must be narrowly tailored to each circumstance in order to be the least restrictive alternative and grant each incapacitated person the greatest amount of autonomy and independence possible.
If you’d like to read more about the Article 81 Guardianship Law, you can do so here.
Guardianship may also be used to protect the legal rights of a minor.
In the event that a parent is no longer able to act on behalf of his or her child, a guardian, usually a relative, is appointed. This could be because the parents have passed away, are incarcerated, too ill to care for the child or are otherwise unfit. In most instances, parental approval is sought prior to any legal proceedings.
Unlike an adoption, under a guardianship, parents in Brooklyn may remain responsible for supporting the child financially and they do not necessarily forfeit their parental rights.
A Brooklyn parent can nominate a guardian for their child in a Last Will and Testament, although that is subject to Court approval. In New York State, a parent can also name a StandBy Guardian (either in a signed and witnessed document or by going to Court).
This link from New York City describes guardianship for a minor from a grandparent’s perspective, but it would apply to any other family friend or family member.
A guardian of the property of a minor must be appointed if the minor receives more than $10,000 as an inheritance, even if both parents are alive and well and taking excellent care of their child. The guardian of the property often is a parent, but there will be restrictions as to what can be done with the money. A much better option is to not name a minor a beneficiary but instead to name a trust for a minor.
If you have issues related to legal guardianships, getting the help of brooklyn guardianship attorneys is key in resolving your problems. Contact New York Legacy Lawyers today at (718) 713 8080.
Seeking assistance from a knowledgeable Brooklyn attorney who is experienced in guardianship is crucial due to the significant impact it has on an individual’s rights. It involves making decisions on behalf of someone else, making it a weighty responsibility.
By reaching out to New York Legacy Lawyers, you can alleviate the stress and burden on your family, ensuring the best outcome for your loved one.
Contact us today to schedule a consultation.
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