New York Guardian Lawyer
Guardians are individuals appointed by the court who assume responsibility and care for individuals who cannot do so themselves. The process of assuming guardianship can be challenging. In order to start the process of assuming guardianship in New York, a person should start getting to know the person for whom they are going to be a guardian, reading up on what they have to do, taking the mandatory guardianship course, and speaking to people as to what their responsibilities are.
To be appointed as a guardian, you will have to file a petition with the New York Surrogate’s Court, Family Court or the Supreme Court depending on your case. A New York guardian lawyer can assist you with filing the proper paperwork in the appropriate court. In addition to petitioning the court to become guardian of the property, you can also petition to be appointed as guardian of the person. The guardian of the person makes healthcare and personal decisions. Speak with a skilled trusts and estates attorney to learn more.
Who Needs a Guardian?
In New York, a guardian of the property is appointed for minors, incapacitated persons or persons with developmental disabilities. A minor will need a guardian of the property in situations where their parents are not able to manage property left for them for reasons such as death, imprisonment or deportation. If a person is an adult but suffers from cognitive or physical impairment that impacts their ability to make sound financial decisions, a guardian of the property may need to be appointed.
Designation of Guardianship
An individual’s inability to make decisions is best proven by the testimony of people who know the individual or have observed the individual, who can state they are unable to make proper decisions on their own behalf. The court will also require the testimony of medical efforts. If there is a relative that cannot handle their own affairs, someone might want to become a guardian of that person. Guardianship is granted by the court. If a person wants to pursue guardianship in New York for an adult, they must take a video course and receive instruction as part of the process.
The court and only the court can appoint a guardian. A person can designate a party in a will that they would prefer to have appointed guardian of minor children if something happened to the parents. The court will normally follow that selection if a person is found to be a responsible person. If it turns out that that person has, for example, become a drug addict or is not a responsible person, the court will not appoint that person as a guardian.
Termination of Guardianships
A guardianship for a minor will usually end on their 18th birthday. If the guardianship was because of a physical disability, the person may just get better; the same with a mental disability. If an incapacitated person regains the ability to make financial decisions, a judge may decide to terminate the guardianship.
The court will hold a hearing and determine if the person is capable of handling their own affairs and, if so, vacate the guardianship. In order to terminate a guardianship in New York, the ward would have to petition the court to vacate the guardianship, stating the reasons why the guardianship is no longer needed, and request the court to terminate the guardianship.
Every guardianship proceeding is started once a petition is filed with the court. Guardianship petitions are usually filed by an incapacitated person’s spouse, family member or Social Services agency.
A judge will review all information submitted to the court by the petitioner and the respondent. The judge will then make a determination regarding the alleged incapacity and who will be appointed as guardian if necessary.
A New York guardianship lawyer could assist an individual with the preparation of their petition to ensure that all necessary information is included and submitted in a timely manner.
Duties of a Guardian
As a Guardian, you are generally granted the authority to make any financial or property related decisions the incapacitated person was previously able to make for himself. You should make every effort to act in the incapacitated person’s best interests. Guardians of minors have to take care of the child/minor and make sure everything is done to the extent possible for their benefit. If someone is the guardian of another adult, they have the same responsibility. The guardian would take care of the affairs of the adult and make sure that the taxes are paid, that their housing is sufficient, etc.
Some responsibilities a person will have as guardian include:
- Ensuring timely payment of bills
- Collecting assets
- Filing annual tax returns
- Managing investments
A guardian of the property is required to file an initial report within 90 days of their appointment in addition to annual reports. The initial report should include an inventory of the incapacitated person’s property and assets. If a person is unsure about their role or legal authority, an attorney could review their court order and clarify any questions the individual may have about their duties as a guardian.
Different Kinds of Guardians
There are different kinds of guardians, based on the different kinds of wards, and their needs. There are guardians for people who care for adults who are incapacitated, mentally or otherwise, as well as guardians for minor children who are under the age of 18 and need representation for some reason.
Conservators do not exist in New York at this time. In the past, conservators handled the financial affairs of an incapacitated person, while the guardian cared for the person themselves. The guardianship statute has blended the task of the conservator into that of the guardian, so there are no more conservators. A conservator was someone that just took care of the financial aspects of the ward.
Reach Out to a New York Guardian Attorney
The best way to avoid dealing with a court-appointed guardian is to execute a durable power of attorney and health care proxy before you become incapacitated. After you become incapacitated, you will not be able to properly execute these documents. The court prefers to make use of these less restrictive means of providing care to an incapacitated person.
A New York guardian attorney could prepare these documents for you to help avoid a lengthy and expensive guardianship proceeding in the future. If you or a loved one were not able to put these documents in place, a lawyer can represent you in a guardianship proceeding. If you would like to schedule a consultation with a New York guardian lawyer, please call today.