All About Legal Guardianship in New York State
What is a Legal Guardian in NY?
When someone can no longer look after their personal or financial affairs, they will need a legal guardian. They will require someone to look after their needs since they cannot do this for themselves, and could otherwise suffer harm. The person in need of such guardianship can be a child or an adult who is legally considered to be incapacitated, unable to care for themselves, or “intellectually or developmentally disabled.”
In these situations, a legal guardian is appointed by the appropriate court depending on the case and whether the person in need is an adult or a child. Such a guardian is responsible for handling specific needs including making decisions for the individual at risk.
According to the NY State Unified Court System website, the term guardianship refers to an arrangement made by the court that gives an individual or organization “the legal right to make decisions for another person” who is otherwise unable to do so.
The type of court that will hear the guardianship case and make the appointment will depend on the type of guardian needed and the circumstances of the individual in need. These courts include Family Court, County Court, Surrogate’s Court, and Supreme Court.
Types of Guardianship in New York.
Guardian to a child.
If one or both parents are unable to take care of a minor, a person (may be a parent) can ask the court that they be granted guardianship of the child. A child in New York State is someone who is 20 years old or younger, unmarried, and not serving in the military.
The guardian is appointed by the court to care for and make legal decisions for the child. In this case, the legal guardian has the same type of authority or power as a child’s parent. Guardianship of a child continues until they are 18 or 21 years of age based on the details of the case and whether the Family Court or Surrogate Court granted the guardianship.
The decision that a parent is not able to care for their child may be decided by a judge if:
- the parent dies
- the parent neglects or abandons the child
- the parent is serving abroad in the military
- the parent is deported out of the country while their child remains in the U.S.
- the parent is no longer able to care for or make decisions for the child due to illness
File a petition with the Surrogate’s Court to be appointed a guardian for a minor who will receive property or money. For example, if a parent dies and leaves a life insurance policy, you will seek guardianship of the child through this court.
File a petition for guardianship for a child in need with the Family Court if the minor is not expected to receive property or money.
To become a guardian, you must be 18 years or older and file a petition, which is a legal form, with the appropriate court (Surrogate’s or Family) depending on the circumstances of the case.
Guardian to someone who is incapacitated.
Becoming a guardian for an individual who is considered legally incapacitated is referred to as an Article 81 Guardianship. The person appointed by the court as an Article 81 guardian is required to complete training and then must be approved by the appropriate court. This can be a family member, a qualified individual who the judge appoints, or a social service organization.
The judge may decide a person is incapacitated and will find it necessary to appoint a guardian for such an individual at risk if:
- the individual can no longer manage or care for their personal needs and/or their property
- the individual is susceptible to harm due to their inability to care for their property and/or personal needs and lack understanding of the consequences
Article 81 guardianships in New York are appointed by judges. These cases are heard in County Court or Supreme Court. Initially a hearing is held to determine if the individual does in fact, need a guardian.
To be appointed you must start by filing a case to petition and provide evidence that guardianship is necessary due to the individual’s inability to care for their property and/or personal needs. Once guardianship is granted by the court, the judge specifies the decisions that can be made by the guardian. Note: a petitioner may be a family member or agency.
When a guardian is appointed as an Article 81 guardian, they may be assigned to help the incapacitated individual with their property and/or their personal needs decisions.
- Personal needs may include making decisions on healthcare, living arrangements, and benefit applications (government, etc.).
- Property management can include paying expenses, handling contracts, and managing assets.
Guardian to someone intellectually or developmentally disabled.
Individuals who are 18 years and older in New York State are assumed to legally have the ability to make their own financial or medical decisions. On the other hand, if an individual 18 and over is intellectually or developmentally disabled and unable to make decisions for themselves, the court may appoint an Article 17-A guardian to assist them.
Such requests are usually made by a parent, guardian, or family member. Appointments of an Article 17-A guardianship are cases determined in Surrogate Court. You may ask the court to appoint an Article 17-A guardian to help an intellectually or developmentally disabled adult if you are concerned about their welfare and inability to make their own decisions.
In New York State, this type of guardianship is the “most restrictive” and should only be considered when all others less restrictive options have been reviewed. Conditions that are typically found in individuals who are intellectually or developmentally disabled include: epilepsy, cerebral palsy, autism, traumatic head injury, or a neurological impairment.
What is a “Standby Guardianship?”
Another type of guardian, called standby guardianship, gives someone temporary authority to care for a minor although the parent or legal guardian is alive. This type of guardianship is usually due to a specific, upcoming event that will prevent the parent or guardian from caring for their child.
By having a standby guardian appointed, when the event occurs, like incarceration, terminal illness, or another triggering event, the child will have a trusted individual to care for them. However, the parent still maintains full rights and can at any time revoke the guardianship.
Guardianship versus Conservatorship in NY.
The difference between guardianship and conservatorship is the type of decisions that will be made on someone’s behalf.
- A legal guardian appointed by the court has the authority to make decisions that are related to the health and wellbeing for a person who is not able to care for themselves. Such individuals are determined to be incapacitated or incompetent.
- A conservatorship, also appointed by the court, makes decisions for an incapacitated or incompetent person that deal with someone’s finances including bill paying, handling investments, bank accounts, and other financial affairs.
For both types of appointments, you should fully understand the extent of your decision-making responsibilities to be sure you follow specific language regarding such designations.
Guardianship options for elderly family members.
The need to appoint guardianship for an elderly family member will depend on the circumstances of the case.
- If someone has been determined to be legally incapacitated, an Article 81 guardianship will be granted and appointed by a New York County or Supreme Court Judge.
- For an individual who is intellectually or developmentally disabled and can no longer make their own decisions, an Article 17-A guardian may be appointed by a Surrogate Court.
Becoming a legal guardian for an adult in NY.
Life can change in an instant and there may come a time when your loved one can no longer make decisions on their own behalf. When this happens, guardianship may be granted by the court and is typically a family member or someone close. However, sometimes the court will appoint an attorney.
If you are someone looking to become a legal guardian, you would need to petition the court. You should look for an attorney to help you. You need to be a US citizen or legal resident 18 years or older.
Someone with a criminal record, however, may not be allowed to function as a guardian. The court may also appoint a corporation or public agency as guardian over an individual depending on the situation and if no one is available.
The type of guardianship you seek and the circumstances surrounding your loved one’s situation will determine the formal process. But it’s important to consider what alternatives may be available outside of guardianship. The needs of your loved one should be paramount. The motivation to become a guardian should be strictly based on their needs and what is best for them.
As a guardian in New York state, your responsibilities may include making decisions related to an individual’s living arrangement, healthcare, legal affairs, financial matters, and applying for government benefits.
Being a legal guardian will end at some point. It may be when the individual at risk dies, when a child (minor) becomes an adult, or when an individual no longer needs a guardian by recovering from their disability. Other reasons for ending a guardianship can include the death of the guardian and if the guardian resigns.
To start the process of becoming a guardian, you should seek the help of an attorney.