Guardianship in NYC
Before you apply, review the Kings County Guardianship website. Click Here to visit the New York City Guardianship Website. This website contains useful information and some frequently asked questions.
To apply for Guardianship in New York City, you will need to prepare several forms. These forms are: the Order to Show Cause, Petition, and Notice of Proceeding. Click here for New York City Guardianship sample Forms. The Petition is your opportunity to tell your story. Pursuant to MHL 81.08, the Verified Petition should set forth the following information:
1. the name, age, address, and telephone number of the person alleged to be incapacitated;
2. the name, address, and telephone number of the person or persons with whom the person alleged to be incapacitated resides, if any, and the name, address and telephone number of any persons that the petitioner intends to serve with the order to show cause and the nature of their relationship to the alleged incapacitated person;
3. a description of the alleged incapacitated person’s functional level including that person’s ability to manage the activities of daily living, behavior, and understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living;
4. if powers are sought with respect to the personal needs of the alleged incapacitated person, specific factual allegations as to the personal actions or other actual occurrences involving the person alleged to be incapacitated which are claimed to demonstrate that the person is likely to suffer harm because he or she cannot adequately understand and appreciate the nature and consequences of his or her inability to provide for personal needs;
5. if powers are sought with respect to property management for the alleged incapacitated person, specific factual allegations as to the financial transactions or other actual occurrences involving the person alleged to be incapacitated which are claimed to demonstrate that the person is likely to suffer harm because he or she cannot adequately understand and appreciate the nature and consequences of his or her inability to provide for property management; if powers are sought to transfer a part of the alleged incapacitated person’s property or assets to or for the benefit of another person, including the petitioner or guardian, the petition shall include the information required by subdivision (b) of section 81.21 of this article;
6. the particular powers being sought and their relationship to the functional level and needs of the person alleged to be incapacitated;
7. the duration of the powers being sought;
8. the approximate value and description of the financial resources of the person alleged to be incapacitated and whether, to the best of the petitioner’s knowledge, the person is a recipient of public assistance;
9. the nature and amount of any claim, debt, or obligations of the person alleged to be incapacitated, to the best of the petitioner’s knowledge;
10. the names, addresses, and telephone numbers of presumptive distributees of the person alleged to be incapacitated as that term is defined in subdivision forty-two of section one hundred three of the surrogate’s court procedure act unless they are unknown and cannot be reasonably ascertained;
11. the name, address, and telephone number of the petitioner;
12. the name, address, and telephone number of the person or persons, if any, proposed as guardian and standby guardian, the relationship of the proposed guardian or standby guardian to the person alleged to be incapacitated, and the reasons why the proposed guardian or standby guardian is suitable to exercise the powers necessary to assist the person alleged to be incapacitated;
13. any relief sought pursuant to section 81.23 of this article;
14. the available resources, if any, that have been considered by the petitioner and the petitioner’s opinion as to their sufficiency and reliability;
15. any other information which in the petitioner’s opinion will assist the court evaluator in completing the investigation and report in accordance with section 81.09 of this article.
In New York City, the documents are filed by first going to 60 Centre Street, Room 158 in NYC. This is the Guardianship Clerk’s office. The Guardianship clerk will review the papers, ask you basic questions, then send you downstairs to the County Clerk’s office to pay the filing fee. After you have paid the filing fee, you should go back to room 158 and submit the papers to the Guardianship clerk.
Once you have filed your papers, they will be reviewed by the Court. There are presently four Judges in New York City who focus on Guardianship proceedings. There are a few other judges who handle some guardianship cases on a part time basis.
Once your case is assigned a Judge, the Judge will sign an Order to Show Cause. In New York City, the Judge will likely appoint a Court Evaluator and Counsel for the Alleged Incapacitated Person. Those two individuals will conduct an investigation to help gather all of the evidence and be the neutral observers for the Court. Click Here to Learn More about the Role of a Court Evaluator.
The Order to Show Cause will set forth a “return date.” This is the date that everybody has to come back to Court to have a hearing on whether or not a guardianship is necessary. THe Petitioner has to prove, by clear and convincing evidence, that the AIP needs a Guardian. The Petitioner present his case first. The Petitioner will usually take the stand and provide his/her testimony. The Petitioner may also seek testimony from the AIP’s friends, neighbors, and other family members.
After the Petitioner rests, if the petition is uncontested, then the Judge will typically ask the Court Evaluator to testify as to the Court Evaluator’s observations. The Court Evaluator has probably met with all of the parties prior to the parties appearing in Court, and typically is able to render an opinion and recommendations about the situation, including who should be the guardian. (If the hearing is contested, then the Court Evaluator will typically not speak until after the Cross-Petitioner has had an opportunity to present his side of the story.)
After all sides have presented their cases, then the Judge will set forth their findings on the record. The Judge will then ask that a party (usually the Petitioner) settle the final Order and Judgment. The person settling the Order on Notice should then get the transcript from the Court Reporter and should prepare a notice of settlement, with proposed Order and Judgment. Click here for a Sample New York City Guardianship Order and Judgment.
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.
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