When a person is unable to care for themselves, or manage their own affairs a guardian may be appointed to manage some or all of their important decisions for them. These legal arrangements are known as Guardianships.
In New York, there are several different types of guardianships with each being overseen by a different court. Let’s take a closer look at each type of guardianship and what you need to know about the guardianship process.
Types Of Guardianships
There are three distinct types of guardianships in New York: Guardianship of a minor, guardianship of a disabled adult, and guardianship of an incapacitated adult. Each different type of guardianship addresses a specific group of individuals with a unique set of needs, therefore each type of guardianship carries a unique set of responsibilities and limitations.
Guardianship Of A Minor
Guardianship of a minor may be ordered when the parents or guardians of a minor child are no longer able to provide care, or manage the affairs of the child. The need for a guardianship of a minor child may arise if the child’s parents have died, or been incapacitated due to illness or injury.
In New York, guardianship of a minor child is determined and overseen by the Surrogate’s Court or Family Court. If a guardian for a minor child has been named in the deceased parent’s will, the Surrogate’s court will review the selection, and if approved, will grant the named person guardianship over the minor child. If no guardian has been named, then a person may apply for an Article 17 guardianship through the Surrogate’s Court.
In cases where the minor child has received an inheritance totaling more than $10,000 dollars, a guardianship over property may be issued as well to protect the minor child’s financial assets until they reach legal maturity and are able to manage their own financial decisions.
Guardianship Of A Disabled Adult
When an adult is determined to be unable to care for themselves due to an intellectual or developmental disability an Article 17 guardianship petition may be filed with the Surrogate’s Court. The Surrogate’s court will review the petition and take into account the advice of appropriate professionals to determine if a guardianship should be awarded, as well as the level of guardianship that may be required. We will discuss the basic levels of guardianship in greater detail later in this post.
Guardianship Of An Incapacitated Adult
New York recognizes that an adult who was previously competent to manage their own affairs may, at some stage, become incapable of making important decisions regarding either their care, or finances, or both due to illness, injury, or age related cognitive decline.
When a previously competent adult becomes incapacitated an Article 81 guardianship petition may be filed with the Supreme Court of New York. The process for awarding an Article 81 guardianship differs from that of an Article 17 Guardianship as the judge will need to consider multiple factors in determining if an individual is truly incapacitated, and if so to what degree might they need oversight and management of their affairs. The judge will take into account all of the details before granting an Article 81 Guardianship, and determining what level of guardianship is required.
So, now let’s delve deeper into the various levels of guardianship available.
Levels Of Guardianship
Each level of guardianship grants the guardian different sets of responsibilities, and places limits on the power that the guardian may exercise over the protected person’s affairs and assets.
Guardianship Over The Person
Guardianship over the Person charges the Guardian with the responsibility of making decisions for the benefit of the protected person regarding their personal care and overall well being. The appointed guardian may make healthcare and medical decisions for the protected person, obtain and maintain suitable housing for the protected person. If the protected person is a minor child, the guardian may make education related decisions as well.
Guardianship Over The Estate
Guardianship over the Estate allows the appointed guardian to oversee the financial decisions and manage the financial assets of the protected person. Strict limitations are generally placed on this type of guardianship to prevent abuse or mismanagement of the protected person’s financial assets.
Guardianship Over The Person And The Estate
Guardianship over the Person and the Estate allows the guardian to oversee and make decisions regarding the personal care, healthcare, and well being of the protected person. This type of guardianship also allows the guardian to exercise control over the protected person’s financial affairs and assets. Again, strict limitations and court oversight is generally included to prevent abuse or mismanagement of the protected person’s assets. As a general rule, the court will determine a set dollar amount to be allotted for the care of the protected person. Any expense that exceeds this predetermined dollar amount must be brought before a judge for approval before the funds may be released.
Determining when, and if, a loved one may be in need of a guardianship to manage their affairs can be a confusing, and emotional process. Seeking the guidance of an experienced Guardianship Attorney will help make this difficult decision a bit easier for all concerned. Guardianship Attorney Rebecca Valk is a well-qualified and knowledgeable attorney with years of experience representing both the would-be guardian, as well as the subject of the guardianship, to ensure that their rights and interests are protected to the fullest extent possible.
If you are seeking guardianship for a loved one, or if a third party is seeking guardianship over you, or your loved one please contact the Law Office of Rebecca A. Valk to discuss your options today. We are here to help!