For some members of our society‚ legal protection may be necessary even after they have entered adulthood. 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. In these cases‚ a guardianship may be established.
Guardians and Protected Persons
Guardianship, also referred to as conservatorship‚ is a legal arrangement that places an individual‚ also known as a ward or protected person‚ under the supervision of a guardian‚ or custodian. There are two main types of guardianship: guardianship of the person and guardianship of the estate or property.
A guardian is typically a family member‚ friend‚ or fiduciary appointed by the court. A protected person can be a minor without a parental guardian or an adult who can no longer make safe and sound decisions about his or her own person or property. Additionally‚ a person may be placed under guardianship who is prone to fraud or undue external influence.
While guardianship does attempt to maintain the protected person’s independence‚ it should only be considered in appropriate cases, as it may significantly impinge upon rights of the individual.
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
To safeguard the protected person’s right to due process‚ he or she may be entitled to notice of‚ and ability to attend all legal proceedings related to guardianship. In addition‚ the protected person may obtain representation by a guardianship lawyer‚ present evidence‚ and confront and cross-examine all witnesses.
Guardianship of the Person
Guardianship of the person often relegates the following responsibilities to the appointed guardian:
- Determining and maintaining residence
- Providing informed consent to and supervising medial treatment
- Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
- Making end-of-life decisions
- Paying debts and other expenses
- Maintaining the protected person’s autonomy as much as possible
The guardian may be required to report to the court about his or her activities on an annual basis.
Guardianship of the Estate or Property
Guardianship of the estate or property transfers the following responsibilities to the guardian:
- 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
- Reporting to the court the estate’s status on a regular basis
Many guardianships are temporary arrangements‚ meant to protect an incapacitated individual until he or she regains capacity.
Guardianship of Minors
Guardianships 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. 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 minor may be considered for legal guardianship if his or her parent cannot provide shelter‚ does not have a steady income‚ suffers from an illness‚ or is incarcerated. In most instances‚ parental approval is sought prior to any legal proceedings.
Why Work With the Elder Law Attorneys of Burner Law Group?
Our elder law attorneys have been helping New York seniors and their families navigate the legal landscape for twenty-five years. Our attorneys do not just dabble in elder law, we help shape it through advocating for seniors' rights in Albany and through the bar associations. We have built relationships with assisted living facilities, nursing homes, and home healthcare agencies across Long Island the five boroughs of New York City - that allow us to better serve our clients. As a firm, we care deeply about helping seniors in our community age with dignity and autonomy.
Office Locations in NYC & Long Island
New York Office
45 W 34th St Suite 1203‚
New York‚ NY 10001
Westhampton Beach Office
82 Main Street,
Westhampton Beach, NY 11978
East Setauket Office
12 Research Way‚
East Setauket‚ NY 11733
Frequently Asked Guardianship Guestions
Article 81 guardianships are most often used when an individual is suffering from some type of cognitive impairment, like Alzheimer’s disease or dementia. Unlike an Article 17-A guardianship, which typically gives blanket powers to an agent to control the affairs of another in much the way a parent controls the affairs of a child, an Article 81 guardianships is more specific in its terms and is most often used in the case of an incapacitated person who previously directed his or her own affairs.
The alleged incapacitated person (AIP) can petition for their own guardianship. Also, relatives of the AIP, the administrator of a facility where the AIP currently resides, or any person who is concerned with the wellbeing of the AIP can petition to be a guardian.
The petitioner must file an order to show cause and a petition with the Surrogate’s Court of the county where the AIP lives. These documents detail the reasons why the petitioner believes that the AIP needs a guardian to oversee his or her affairs. Then, a court evaluator is appointed by the judge in the proceeding. The court evaluator is responsible for submitting a recommendation to the Court on the necessity of the Article 81 appointment through a series of interviews and other investigations.
A hearing is held at which it is determined whether an Article 81 appointment is necessary. The AIP, petitioner, and court evaluator are present at this hearing, though the AIP’s appearance can be waived if it is determined that the AIP cannot meaningfully participate in the heating. The petitioner has the burden of proving that the AIP is incapacitated and that harm would result if a guardian were not appointed. Alternatively, the AIP could consent to the guardianship but the judge would still have to decide that a guardian was necessary.
Should the court decide that an Article 81 guardianship is justified, the court will determine which powers the guardian will be granted. The powers must be the least restrictive interventions necessary to help with the specific needs of the AIP as determined by the court.
A guardian will have to file a Consent to Act form. Also, a guardian completes an Oath and Designation in which he or she swears to carry out the appointment faithfully and with the best interests of the incapacitated person in mind. The guardian must take a training course related to his or her new responsibilities and is required to submit a within 90 days documenting that a bond was posted (if needed) and the course was completed. Each year thereafter the guardian is required to submit an annual accountings to the court.
Under Article 81, a “Guardian of the Person” can be appointed to oversee the day-to-day maintenance of the physical life of the incapacitated person, managing their health care needs, planning for meal service, decide whether the ward shall live, and directing other daily activities to help keep the incapacitated person safe.
A Guardian of the Property is responsible for managing the finances of the incapacitated person. The guardian can be a different agent than the “Guardian of the Person,” though the same person can serve in both rolls.
A guardian typically makes an initial report within 90 days of the inception of the guardianship. In this report, the guardian attests to the general wellbeing of the incapacitated person and lists his or her assets. Thereafter, the guardian is responsible for filing an annual report which similarly attests to the financial, emotional, and physical wellbeing of the incapacitated person.
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New York Elder Care Attorneys
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