What Are Guardianships?
Guardianship is a legally recognized status that refers to one person possessing the legal authority to make personal and financial decisions for another person. A court evaluates a petition for guardianship and, if everything is in order, grants guardianship status to the petitioner. The person someone becomes the guardian for is called the “Ward.” Usually, the Ward is a child, but sometimes the ward can be an adult. There are also situations where one obtains guardianship over an estate or property.
Most of the time, guardianship becomes necessary when the protected person is not able to make decisions on his or her own (more on that below). The guardian becomes financially responsible for the care and protection of the ward, though the guardian usually does not assume responsibility for paying the ward’s debts from his or her own assets. In guardianship, the protected person may lose rights over matters such as determining where to live, giving consent to medical treatments, making end-of-life decisions, selling/buying/managing property, and more.
Because the protected person may lose certain rights, it’s often a good idea to explore alternatives first unless guardianship is the only answer. Some of those alternatives include managed care, health care surrogacy, trusts, powers of attorney, and living wills. A good attorney will go over such options that are applicable.
In cases where the protected person is an adult, guardianship usually lasts until the death of that person, but there are situations where the protected person may seek restoration of rights at some point.
Rebecca handles proceedings to establish a guardian for adults who are alleged to incapacitated under Article 81 of the Mental Hygiene Law and proceedings under Article 17-A of the Surrogate's Court Procedure Act to appoint guardians for an individual diagnosed with an intellectual or developmental disability prior to the age of 17.
Why Would You Need a Guardianship?
There are many situations that might call for guardianship for an adult as a solution. Following are three of the most common.
An adult has become mentally incapacitated or incompetent.
When guardianship is necessary for an adult, this is the most common reason. If the person in question did not have legal arrangements prior to the incapacitation, guardianship is probably going to be the only available option. Of course, to protect the ward-to-be, a court will require proof of incapacitation or incompetence as well as other requirements as to the rights and interests of that person.
An adult is experiencing some type of diminished functioning.
A type of limited guardianship often results in this instance so that the protected person retains as many rights as possible but receives assistance where it’s needed. One good example of this is a child who becomes a legal adult but has been diagnosed with an intellectual or developmental disability. This individual may be capable of managing most things on his or her own but may need dedicated assistance for particular things.
An adult is a danger to himself or herself.
This can be a very complicated one, but here is one example: an adult’s drug or alcohol addiction is so severe that the person represents an imminent threat to his or her own life and well-being and cannot be trusted to make rational decisions on his or her own, so the parents seek guardianship. Such a situation is also a good example of a case where the ward may be able to obtain restoration of rights at a later time.
Why Hire Rebecca Valk As Your Guardianship Attorney?
A graduate of the law school at St. John’s University here in New York, Rebecca knows guardianship law in and out. She will diligently represent the would-be ward’s rights and interests, and she can also represent the person seeking guardianship and guide him or her through the process, ensuring everything is done properly.
For parents worried about their a child that has intellectual or developmental disabilities, Rebecca can help examine and evaluate alternatives in advance or legally establish preferred guardinship so that their children never end up caught in a limbo of lengthy court proceedings and uncertainty.
The same applies to adults thinking of their own best interests. If you become incapacitated, it’s too late for you to safeguard your wishes, interests, and preferences the way you prefer. Rebecca can help you with power of attorney and other options that will give you more control.
No matter which end you or your loved one is on, the process of granting guardianship is not something you want to deal with in a time of crisis when emotions are running high. Sometimes crisis and tragedy can’t be avoided, but when there’s time to plan ahead, it’s smart to take advantage of that to avoid painful, expensive headaches later on.
If you are seeking guardianship, if you or a loved one might be the subject of a guardianship petition, or if you want to start planning in advance, please contact the Law Office of Rebecca A. Valk office for a consultation.
Before looking at the answer to this, it’s important to have a clear understanding of the differences between legal guardianship and power of attorney.
Legal guardianship is an arrangement authorized by a court wherein somebody (the guardian) has the power to make financial and/or personal decisions for someone else (the ward). Usually, the ward is somebody who does not have the capacity to make sound decisions about those matters on his or her own. Most of the time, the guardian is a family member, but sometimes it can be a friend or third party.
Power of attorney grants one person legal authority to take actions on behalf of another. Those actions can be specific or broad to fit the circumstances. Many individuals choose to execute a power of attorney that does not take effect until the person who granted it becomes incapacitated.
For the protected person, power of attorney is usually better when an option because that person retains more control and can revoke power of attorney if not incapacitated, the process is less expensive, no courts are involved, and there is more privacy since court proceedings are part of the public record.
When the ward is an adult, it often means a disability is present, so the guardian’s obligations may include financial transactions such as selling a home and buying a new one better suited to the ward’s needs. The guardian handles the arrangements but is typically not liable for costs himself or herself.
Guardians also have to communicate about financial transactions with wards and their close relatives, and they have to determine if an incapacitated ward has a will. When the time comes, the guardian has to ensure that the terms of the will are carried out.
A financial responsibility a guardian usually does not have is using his or her own assets to pay off debts the ward incurred. Exceptions to this can include willingly incurring them, claiming the ward as a dependent, acting negligently, and incurring debt on the ward’s behalf by exceeding granted legal responsibilities. The guardian pays the ward’s debts using the ward’s assets and only incurs penalties if he or she fails to pay them. If the ward’s debts end up being referred for collection, this does not impact the guardian’s credit score.
For guardianship petitions, power of attorney, and legally valid wills, especially if you see incapacity looming and don’t want to lose the ability to select a guardian of your own choosing, seek a qualified, experienced family law attorney like Rebecca Valk. Rebecca is licensed in New York and has extensive experience with family law in the region.