What is Guardianship in New York City?

In New York, Guardianship is the relationship between an incapacitated person and a fiduciary, who assists the incapacitated person with various activities that the incapacitated person is unable to perform completely on his/her own.  A guardian of the person assesses the incapacitated person’s personal needs and makes determinations about the incapacitated person’s personal care, while a guardian of the property manages the incapacitated person’s assets and assists the incapacitated person in making decisions about his finances.

What are the different types of guardianship proceedings in NY?

There are three main types of guardianship proceedings in New York.  

An Article 17 guardianship is a guardianship for minors. Generally, an article 17 guardianship is commenced when a minor’s parent or parents are no longer able to care for him. These proceedings can be commenced whether or not the minor’s parent or parents are living.  For example, a minor may need a guardian where her parent has died or has become too ill to care for her child.   

An Article 17-A guardianship proceeding is commenced specifically on behalf of adults with mental and developmental disabilities.  When an individual attains the age of 18, she is considered an adult who is able to manage her own assets and personal care.  However, individuals with mental and developmental disabilities are often unable to manage their own personal and financial matters even in adulthood.  Therefore, Article 17-A guardianships are often commenced as a means to continue to provide care to a disabled individual who has become an adult.  Because the individual is now an adult, a guardianship proceeding must be commenced in order to appoint a guardian to provide financial and/or personal care to the individual.

Article 81 guardianships are usually commenced on behalf of adults who are unable to care for themselves and generally involve an incapacitated person who was once able to manage his own affairs but lost capacity to do so later in adulthood.  Article 81 guardianships are meant to provide the incapacitated person with assistance without completely removing the incapacitated person’s independence.  

Article 81 guardianship tends to be the most complex, expensive, and time-consuming type of guardianship proceeding, and is, therefore, the focus of this guide.  

When does somebody need a guardian?

An individual needs a guardian when he lacks the capacity to take care of himself or to make decisions about his own finances or personal care.  Some examples of individuals who may need an Article 81 guardian are individuals who suffered an injury, like a stroke, that makes them unable to understand or assess their physical or financial needs, individuals with Alzheimer’s disease, Multiple Sclerosis, or ALS, or individuals with other types of mental or physical illness that makes them unable to physically care for themselves or manage their finances.

Guardianship is often an alternative to a power of attorney, which is a document that allows an individual, known as the principal, to name someone to act as their agent in order to assist the principal in a number of capacities.  For example, the principal of the power of attorney can give her agent the power to handle her estate transactions, real estate matters, and banking transactions.  The principal must have capacity when she executes the power of attorney, however, and oftentimes, individuals become incapacitated before they have the opportunity to execute a power of attorney.  Furthermore, a power of attorney can be executed only by the person whose assets will be managed by the agent.  Guardianship may be a solution to these issues, as a guardianship proceeding may be commenced by the incapacitated person or one of a number of other individuals who have standing to do so, including the family members of the incapacitated person, for example.

Who can apply to be a guardian?

Section 81.06 of the New York Mental Hygiene Law provides a hierarchy of individuals who may apply to become an Article 81 guardian of a person alleged to be incapacitated.

The person alleged to be incapacitated is first on the list, followed by the presumptive distributees of the person alleged to be incapacitated.  A presumptive distributee is an individual who stands to benefit from the estate of the alleged incapacitated person should he die without a will.  For example, in New York, if a decedent died without a will and was survived by his spouse and children, only the spouse and children are entitled to benefit from the decedent’s estate.  Therefore, if the alleged incapacitated person has a spouse and children, the spouse and/or any one or more of the children may commence the proceeding.

An executor or administrator of an estate of which the alleged incapacitated person is a beneficiary may also petition to be appointed as guardian of the alleged incapacitated person.  The list also provides a few other individuals who have standing to commence the proceeding.  In many cases, however, it is the alleged incapacitated person or a presumptive distributee who commences the proceeding.

What are the Responsibilities of a Guardian?

The general duties of a guardian are set forth in Section 81.20 of the Mental Hygiene Law. Some of the duties include the duty of loyalty to the incapacitated person and the duty to file initial and annual reports, which provide the court with information about the incapacitated person, such as the incapacitated person’s current address, information about his medical care and condition, and information about the incapacitated person’s activities.  The guardian is also required to visit the incapacitated person at least four times a year.  

A guardian’s powers vary depending on whether that guardian is a guardian of the person or a guardian of the property of the incapacitated person.  Powers are set forth in Section 81.21 and 81.22 of the Mental Hygiene Law and are also provided in the court order appointing the guardian.

Generally, a guardian of the person is given the authority to make decisions regarding the incapacitated person’s social environment; determine whether the incapacitated person should travel; determine where the incapacitated person shall live; and determine who shall provide personal care to the incapacitated person.  In contrast, a guardian of the property is usually afforded such powers as the power to collect the assets that are held solely in the incapacitated person’s name; enter into contracts with the court’s approval; make gifts with the court’s approval; apply for government benefits; and exercise the right to change beneficiaries under the incapacitated person’s insurance policies.

What Documents do I need to file for Guardianship?

In order to commence a proceeding to appoint an Article 81 guardian, the Petitioner needs to prepare a Petition to Appoint a Guardian, an Order to Show Cause, a Request for Judicial Intervention, and a Notice of Proceeding.  The Petition must include such information as the contact information of the alleged incapacitated person, the particular powers being sought by the proposed guardian, and a description of the alleged incapacitated person’s functional level.

The Petitioner must file the Petition, the Order to Show Cause, and the Request for Judicial Intervention in the Supreme Court of the county in which the alleged incapacitated person resides or is physically present.  

What Happens Before the Hearing?

After the Petitioner files the Petition, Order to Show Cause, and Request for Judicial Intervention, the Court will sign the Order to Show Cause and will write in the time, date, and place of the hearing for the guardianship hearing.   The Court will also provide the names and contact information of the Court Evaluator, Court Examiner, Court-appointed attorney for the alleged incapacitated person, if any, and any other individuals that are appointed by the Court, such as a property manager or geriatric care manager.

The Court Evaluator is appointed in order to assess the needs of the alleged incapacitated person and provide a report of her findings to the Court. The Court Examiner has a number of duties, including the duty to review the guardian’s required annual reports. The court also sometimes appoints an attorney to act on behalf of the alleged incapacitated person where the alleged incapacitated person does not already have an attorney to represent her interests in the matter.  The purpose of the court-appointed attorney is to ensure that the interests of the alleged incapacitated person are being represented, especially if the alleged incapacitated person does not wish to have a guardian appointed.

After receiving the signed Order to Show Cause, the Petitioner must give notice to all persons interested in the proceeding.  The Petitioner must personally serve a copy of the signed Order to Show Cause and the Petition on the alleged incapacitated person no fewer than fourteen days before the hearing of the Order to Show Cause.  The Order to Show Cause and the Petition must also be served on the Court Evaluator and the attorney for the alleged incapacitated person, but such documents must be served within three business days following the appointment of such individuals and can be served by facsimile, personal delivery, or overnight delivery service.

All other interested parties in the proceeding must be served, but only require a copy of the Order to Show Cause and the Notice of Proceeding.  The Petitioner should include in the Notice of Proceeding the date, time, and place of the hearing, as well as the names and contact information of all individuals appointed by the court.  The Petitioner can serve the Order to Show Cause and Notice of Proceeding on these interested parties by mail and must do so no fewer than two weeks before the hearing.

In addition, prior to the hearing, the Court Evaluator will meet with the alleged incapacitated person, assess his needs, and prepare a report for the Court.  In such report, the Court Evaluator provides his assessment of whether the alleged incapacitated person needs a guardian and a recommendation of whom that guardian should be.  This report helps the Court decide whether or not to appoint a guardian for the alleged incapacitated person.

What happens at the hearing?

At the hearing, the Petitioner, Court Evaluator, and attorney for the alleged incapacitated person will present evidence to the Court regarding whether the alleged incapacitated person needs or does not need a guardian.  The judge considers all evidence in make her final decision on whether to appoint a guardian, whether the incapacitated person needs a guardian of the person, a guardian of the property, or both, and whom to appoint as the guardian or guardians.

What Happens after the Hearing?

At the end of the hearing, the judge usually issues a decision for whether or not he will appoint a guardian.  Such decision is stated aloud by the judge and usually recorded by a court reporter.  The Petitioner may then be directed to settle the Order & Judgment Appointing Guardian.  In order to settle the order, the Petitioner should review the transcript of the judge’s decision and draft the order in accordance with the judge’s findings.  The Petitioner and the alleged incapacitated person, or his attorney, must both sign the order.  Once the parties have signed the order, the Petitioner must send the signed order to the judge for his signature.

After the judge signs the order, the Petitioner must send a Notice of Entry and the signed order to the interested parties.

The Petitioner must then obtain a bond, sign and file an oath and designation, complete and file the commission, complete a guardianship training course, and file an initial guardianship report with the court.  

The Petitioner must also file annual reports with the court going forward.

What are Alternatives to Guardianship?

Article 81 guardianships are often necessary to allow the incapacitated person to remain independent while granting authority to another individual to assist the incapacitated person in his personal and financial affairs.  Without article 81 guardians, incapacitated individuals often are left helpless and unable to get the care they need or suffer from abuse by individuals with no responsibilities to account to a court.

Article 81 guardianship proceedings, however, can be very costly and time-consuming.  There are some alternatives that may afford the incapacitated person the care that she needs.

One way to prevent a costly guardianship proceeding is to execute Advance DIrectives – Power of Attorney, Health Care Proxy, Living Will, HIPAA, Appointment of Agent to Control Disposition of Remains, and Designation of Guardian. For an individual’s financial needs, such individual can execute a power of attorney, in which he gives one or more individuals certain powers to manage the individual’s financial affairs.  Powers include the power to manage that individual’s estate transactions, real estate matters, and banking transactions.  The principal of the power of attorney (the person who prepares it) may limit the powers he grants to his agent or give the agent broad powers, including the power of the agent to give gifts to himself and to anyone else.

An individual may also execute a revocable trust.  Under such trust, the creator can nominate himself as initial trustee and name someone to act as trustee if the creator is rendered unable to act.  This way, the creator has the freedom to manage his trust assets while he still has capacity and the assistance of a trusted individual once he loses capacity.

However, these two alternatives require that the individual has capacity when he executes the documents.  Therefore, he must make sure to execute such documents while he is still able to do so.

For an individual who is unable manage his own personal care, a family member may hire a social worker or professional caregiver or sign her up for residence at nursing home.  However, without a guardian, no one is required to account to the court, and the incapacitated person may be more vulnerable to abuse.

For more information, please contact guardianship, and estate planning attorney Regina Kiperman:
Phone: 917-261-4514
Email: rkiperman@rklawny.com
Or visit her at her new location:
80 Maiden Lane
Suite 304
New York, NY 10038

Visit Regina on Google+

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