Ending Guardianship In NYC
Ending guardianship in NYC is its own process that must be understood and analyzed.
Guardianship, in general, is an arrangement where the Court gives an individual or, in some cases, an organization, the legal right to make decisions on behalf of, and for the benefit of another person, who is no longer able to make those decisions. There are times where ending guardianship makes sense.
How do You know when You, or Somebody You know, May be in Need of a Guardian?
A guardian may be necessary if:
- You recognize that you need help with decision making and prefer judicial oversight over the person who will make your decisions; or
- There are no Advance Directives in place; or
- A person is “flip-flopping” between agents and signing multiple Powers of Attorney; or
- A person has been, or, is being exploited; or
- A person cannot independently perform their activities of daily living; or
- A person is unable to manage their finances; or,
- A person is in a health care facility and unable to make the appropriate decisions to be discharged.
What if you are interested in Ending Guardianship over the Person?
There are situations where a Guardian is no longer necessary. A guardian may no longer be necessary when:
- The guardian was appointed for a specific purpose, pursuant to MHL 81.16
- The incapacitated person has regained capacity; or
- The guardianship does not have any more funds and the assets have been depleted.
In such case, ending guardianship makes the sense.
What is the Process of Ending Guardianship over your Loved one?
In general, ending guardianship can be accomplished by filing a Petition with the Court asking for either discharge, or termination. If you are the Guardian, then you can file a Petition for Discharge or Termination. Please check with the guardianship clerk in the county where you are filing to confirm whether that Court would like you to bring the Petition, either via a Motion, or via an Order to Show Cause. If there is an emergency, I would always encourage bringing the Petition by Order to Show Cause. If this is not an emergency, the guardianship part may have their own specific rules and preferences.
If you were appointed a “Special Guardian,” pursuant to MHL 81.16, and you have finished the transaction you were charged with, then you can state that you have completed your duties as Guardian. If you collected any funds, then you should prepare to file an accounting to show how the monies were received and disbursed. If you are did not marshal any funds, then you should so indicate. You should also discuss the status of your ward and indicate that the person is self sufficient, or, has mechanisms of taking care of themselves.
If you were the guardian, and the funds have run out and the person is in a facility, you can Petition the Court and seek termination based upon depletion of funds and assets. In your Petition you can state that there are no more funds. If the Person is in a Nursing Facility, then you can state that the Nursing Facility can make the medical decisions as a Surrogate under the Family Health Care Decisions Act. Click here for more information.
If you are representing a person who was previously determined to be incapacitated, and you believe that this person has regained capacity, then you should, along with your Petition (which should be signed by the incapacitated person), include an Attorney Affirmation discussing standards for ending guardianship, as well, as an Affidavit from an independent psychiatrist or medical professional who will be able to take the position that the incapacitated person has regained capacity. Prior to filing such a Petition ending guardianship, you should speak with your incapacitated person and understand what the person’s plans would be with respect to personal needs decision making and financial management
You will have to demonstrate that the person is no longer at risk of harm to themselves. You will have to prove that the person is able to manage their activities of daily living. If the original basis for the guardianship was that the person was being exploited, you will have to demonstrate that the person is no longer at risk of being exploited, and, is able to execute the necessary documents to protect themselves.
I recommend having your incapacitated person meet with an independent psychiatrist, who, will be able to testify that they have met with this person and, from a medical perspective, can state that the person is able to understand and appreciate the nature and consequences of their actions.
What Happens in Court when Ending Guardianship over a Person?
At the return date of the hearing on a petition to terminate a guardianship, you should be able to testify about the basis for the termination. If you are terminating because you have finished your duties, be prepared to explain what you have done. If you are terminating based upon depletion, be prepared to testify that funds have been expended and that the ward is safe.
If you are terminating somebody else’s existing guardianship, then be prepared for the “incapacitated person” who has now regained capacity to testify. Also be prepared to have your independent medical examiner testify about the individual’s ability to make decisions.
Guardianship is discussed in greater detail in the my blog that follow. My goal is to simplify your life and assist you with your endeavors. Please feel free to contact me at your convenience to discuss further.
For more information, please contact Guardianship, probate and estate planning attorney Regina Kiperman:
Or visit her at her office:
80 Maiden Lane
New York, NY 10038
This post is made available by the lawyer for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this site you understand that there is no attorney client relationship between you and the lawyer. The post should not be used as a substitute for competent legal advice from a licensed professional attorney in your stat