One important value that people of all ages throughout our society hold (especially our seniors), is independence. Independence is engrained in our society and is arguably the one true common factor throughout our nation. But our definition of independence extends far beyond the broader concept of political self-governance to the desire for every individual to be able to make his or her own decisions and for our wishes to be honored. Unfortunately, our individual independence can be limited through the loss of one’s capacity. For those individuals who do not have advance directives, the inability to make personal and financial decisions can result in the need for a court-appointed guardian. The process of having a guardian appointed can be complicated and costly without the guidance of an experienced attorney in Legal Guardianship in NY.
For those individuals who do not have advance directives, the inability to make personal and financial decisions can result in the need for a court-appointed guardian.
An Article 81 Guardianship is appropriate for an individual who, at one time, was competent but not suffers from either functional or cognitive limitations that limit their ability to complete daily activities without help from others. In some cases, the limitation may be the result of an unexpected illness, sudden accident or a slow progressive disease
Often, parents of children with special needs, whether developmentally disabled or intellectually disabled, assume they may continue to make decisions of their child’s behalf even after the child reaches the age of majority or 18 years of age. However, once the child reaches the age of majority, no other person has the authority to make medical, personal and/or financial decisions for that individual. In order to legally be able to make decisions for an adult under a developmental disability, a guardianship proceeding is required.
In instances where a minor’s property is valued at more than $10,000, a court must oversee the management of the assets. This usually occurs when a minor has either inherited funds or property after a loved one deceases or when a personal injury lawsuit is settled. The objective of the law is to protect the gained assets of the minor throughout childhood. After reaching the age of majority, the assets are turned-over to the child.
A guardian can make a broad range of financial decisions on behalf of an incapacitated person. The guardian is usually a family member or close friend, who can be given the power to:
A guardian can set up a Special Needs Trust. The trust will allow a trustee to hold the person’s assets for his or her benefit without compromising Medicaid eligibility, subject to certain conditions. This is a vital planning tool for all incapacitated persons under age 65 who have assets.
A guardian can also make important personal decisions for the incapacitated person regarding routine and major medical and dental treatment; living arrangements; educational and training opportunities, and the application for government benefits including SSI and Medicaid.
Your attorney petitions the appropriate court and asks that the court appoint you (or, if you wish, someone else) as guardian. The court decides whether or not a guardian is needed, who should be appointed, and what financial and/or personal decision-making powers the guardian should have. Once appointed, the guardian can begin to act on behalf of the incapacitated person.
Does a loved one, friend, relative or neighbor lack the ability to properly care for him or herself? Whether such inability is due to age, illness, exploitation, lack of family or support in the community, The Law Offices of Frank Bruno, Jr. can provide the insight necessary for you to decide whether or not to pursue the appointment of a legal guardian.
The appointment of a Guardian is a serious legal matter affecting the fundamental rights of another person. Deciding whether to pursue the appointment of a guardian is the first step and deciding what type of guardianship is the next. The various courts and types of guardianship proceedings available can be confusing. We can help.
Whether you are seeking to have a guardian appointed, opposing a guardianship case brought by someone else, modifying a guardianship, or whether you require assistance with an existing guardianship matter, our firm, with over one hundred active guardianship cases, has the ability and experience to assist you with all aspects of guardianship law.
There are four types of Guardianship proceedings in New York which are governed by the three separate bodies of law:
Article 81 Guardian is a term used to describe the appointment of a guardian under Article 81 of the Mental Hygiene Law. This type of Guardianship is commonly utilized for the appointment of a Guardian for an adult, but, depending on the circumstances, can also be suitable for a minor. An Article 81 Guardianship is commenced by filing a petition in the Supreme Court or County Court, typically in the county in which the individual resides. This type of guardianship focuses on the abilities and rights of an individual, mandating that the Guardian’s decision-making authority be limited to the specific needs of the individual. The ultimate goal is to allow the individual to have the freedom to make decisions of which he or she remains capable, despite the appointment of a guardian to make those decisions for which he or she is no longer capable of making. How the Court strikes such a balance requires a full understanding of Article 81 of the Mental Hygiene Law, including due process requirements, reporting and bonding considerations and the protections afforded the individual (the Alleged Incapacitated Person) who is the subject of the proceeding.
Article 17 Guardian is a term used herein to describe the appointment of guardian under Article 17 of the Surrogate’s Court Procedure Act. This type of Guardianship is exclusively limited to the appointment of a Guardian for a person under the age of eighteen. An Article 17 Guardianship is commenced by filing a petition in the Surrogate’s Court, typically in the county in which the subject individual resides. This type of Guardianship is typically utilized for the appointment of guardian for a minor in situations where the minor is entitled to receive a sum of money over $10,000.00 pursuant to a will, settlement, intestacy or a wrongful death proceeding. In such instances the law requires the appointment of a guardian over the property so that the monies are accounted for, protected and remain available for the minor until the age of majority, which is eighteen years old. In addition, a guardian can also be appointed under Article 17 to make day to day decisions of a minor and assume such responsibilities that would normally be carried out by a natural parent. This type of appointment is considered a guardianship of the person or personal needs guardianship. Determining whether an Article 17 Guardianship is appropriate for you can be confusing. There are annual reporting requirements to consider and deciding whether to seek a guardian for property and/or personal needs management should be considered from the beginning.
Article 17A Guardian is a term used herein to describe the appointment of guardian under Article 17A of the Surrogate’s Court Procedure Act. This type of Guardianship is limited to the appointment of a guardian for an individual who is developmentally disabled or mentally retarded. An Article 17A Guardianship is commenced in the Surrogate’s Court, typically in the county in which the subject individual resides. This type of Guardianship is typically utilized by a parent for the appointment of a guardian when a developmentally disabled or mentally retarded child is about to turn eighteen years old. At such age, with limited exceptions, parents no longer have the authority to make personal, medical and/or financial decisions for their child. A petition under Article 17A is not restricted to parents or family members, but may also be commenced by friends or other concerned adults. As with an Article 17 Guardianship, an Article 17A guardian can be appointed for personal needs management, property management, or both. Determining whether an Article 17A Guardianship is appropriate for your concerns can be confusing. However, when no opposition is expected, this type of proceeding can be commenced with little expense and without the need to retain a guardianship lawyer.
Article 6 Guardian is a term used herein to describe the appointment of guardian under Article 6 Part 4 of the Family Court Act (FCA). This type of Guardianship is exclusively limited to the appointment of a guardian for an individual under the age of eighteen. An Article 6 Guardianship is commenced in the Family Court in the county in which the subject minor resides and is very similar to the Article 17 Guardianship commenced in the Surrogate’s Court. An Article 6 Guardian is appointed to make day to day decisions for the minor as well as to assume those responsibilities that would normally be carried out by a natural parent. Such a Guardianship is considered a Guardianship of the Person; however, unlike an Article 17 Guardian, there is no provision for the appointment of a property management Guardian. This type of Guardianship is typically utilized by grandparents, or other close relatives of a minor child to obtain the legal authority to make decisions for the child. It is used for a minor child who is attending school in New York while their natural parents reside abroad.
Once a guardian is appointed the Court continues to have jurisdiction over the guardian and the subject individual. This judicial oversight includes an ongoing obligation requiring the guardian to periodically provide the Court with reports of their activities relating to the personal needs of the subject individual and as to the guardian’s management of the property of the individual. This is typically true for Article 81 Guardians and property management guardians appointed pursuant to the SCPA.
Following the appointment of a guardian by the Court it may be necessary for the guardian to fulfill certain requirements as directed by the judge. These may include: 1) the posting of a bond to protect the assets of the subject individual; 2) the filing of an oath & designation; and 3) obtaining a certified commission or decree confirming the appointment
During the initial guardianship period, a guardian may be required to attend training and file an initial report with the Court and an annual report each year thereafter. A guardian may also be required to file a final account upon the death of the subject individual, when the guardianship is no longer required or if the guardian is removed or resigns.
Failure to qualify as a guardian and submit appropriate reports to the Court can result in the removal of the guardian and, in some instances, sanctions can be imposed. Property management guardians must account for all monies and property received as well as for each expense paid on behalf of the individual.
Have you been appointed as a guardian, or are you or a loved one the subject of an existing guardianship? Often times, especially with an Article 81 Guardianship, circumstances may change requiring modification of certain aspects of the guardianship. A court order is typically required to modify a guardianship, as a guardian is limited to making only those decisions for the individual that were specifically authorized in the original court order appointing the guardian.
These changes may include termination of the guardianship, removal of a guardian, the appointment of a successor, standby or co-guardian, approval to relocate the subject individual, appoint counsel to assist the guardian, approval to sell or purchase real property, reduction or elimination of the bond, approval to engage in Medicaid or estate planning, or to grant any additional authority that was not specifically authorized by the Court.
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