For some members of our society, legal protection may be necessary even after they have entered adulthood. In these cases, a guardianship may be established. There are a few different types of guardianship arrangements in New York State.
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 mentally retarded or 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.
Here is a link to different types of Guardianship in New York State. It gives directions on how anyone may petition the Court for Guardianship. However, in many cases it is wise to consult with an attorney before you file or retain an attorney to represent your interests and goals.
Article 81 Guardianship
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.
Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:
- Choosing residence
- Providing informed consent to medical treatment
- Making end-of-life decisions
- Making property transactions
- Obtaining a driver’s license
- Owning, possessing, or carrying a firearm or other weapon
- Contracting or filing law suits
Right to Due Process
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.
Guardianship of the Person
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
- Determining and maintaining residence
- Providing informed consent to and supervising medical treatment
- Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
- Making end-of-life decisions
- Maintaining the protected person’s autonomy as much as possible
Guardianship of the Estate or Property
Guardianship of the estate or property empowers the guardian to make important financial decisions on behalf of the protected person, including:
- Organizing, gathering and protecting assets
- Arranging appraisals of property
- Safeguarding property and assets from loss, whenever possible
- Managing income from assets
- Making appropriate payments
- Obtaining court approval prior to any sale of major assets
- Applying for permission to do “Medicaid Planning” and apply for Medicaid or other public benefits
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 of Minors
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 may remain responsible for supporting the child financially and they do not necessarily forfeit their parental rights.
A 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 Stand By 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.