Guardianships
The decision to seek guardianship of a loved one can be extremely difficult. A guardianship becomes necessary when a person cannot manage their own affairs. Article 81 of New York's Mental Hygiene Law authorizes a court to appoint a guardian to manage the personal and/or financial affairs of a person who cannot manage for himself or herself because of incapacity. Generally, guardianships are created for the following purposes:
- Allow the guardian to pay the bills and manage the finances of the incapacitated person
- Place the incapacitated person into a hospital, nursing home, or long-term care facility
- Apply for government benefits such as medicaid and protect assets via estate planning
Who Can Become a Guardian?
Nominees of the incapacitated person, the petitioner, and family members are given preference when the court determines who should be the guardian. If there is a different of opinion among family members as to who should serve as guardian, the court will often appoint an independent guardian. The person who wishes to serve must obtain a bond which is an insurance policy (paid for our of the assets of the incapacitated person), insuring the incapacitated person against theft or other malfeasance by the guardian. If there is no family member or friend who is willing to serve as guardian, then the court will appoint an independent guardian.
The Guardianship Process
The process starts when someone asks the court to appoint a guardian by filing a petition. Once the petition is filed with the court, the court normally appoints a court evaluator. The evaluator will conduct an investigation and provide the court with a report and an opinion as to whether or not the appointment of a guardian is necessary. The court may also appoint a lawyer to represent the incapacitated person. When the petition is filed, the court also sets a hearing date and orders that the notice of the filing of the petition be given to close family members.
At the hearing, it is necessary for the petitioner to present the court with clear and convincing evidence that they incapacitated person is incapable of managing certain aspects of their personal and/or financial affairs. The court evaluator presents his or her report at the hearing. Anyone who has filed opposition papers will also be given an opportunity to be heard. After the hearing, the court will make a decision.
Duties of the Guardian
- A person who wants to serve as a guardian must take a six-hour course where the duties of the guardian are explained. Some of the more significant duties are listed, including:
- Within 90 days of an appointment as guardian, the guardian must file what is called an initial report. The initial report typically contains a brief summary of the status of the incapacitated person and a list of the assets of the incapacitated person.
- By May 31 of each year, the guardian must file an annual report with the court which explains in detail all income and disbursements from the previous calendar year.
- At the termination of the guardianship, the guardian must file a final report which summarizes all of the activities of the guardian for the entire length of the guardianship.
- A guardian must visit the incapacitated person at least four times per year.
Contact a New York Guardianship Attorney Today
Contact Adams Law Group with offices in Westchester County, Rockland County, New York City and New Jersey to schedule a free consultation.
