Establishing a guardianship in the State of New York involves a multistep process that requires proper attention to detail and an understanding of the legal guidelines. To kick off the process, the interested party, who is usually a family member or close friend, has to file a petition in the appropriate court within the county where the alleged incapacitated person currently resides. This petition is a formal request to the court to establish guardianship for the said individual.
The paperwork required for filing a guardianship petition can be extensive. It typically includes the petition for guardianship itself, which details why the petitioner believes the individual in question cannot manage their own affairs, and what type of guardianship is sought. Other required documents may include medical certifications or affidavits attesting to the individual’s incapacity, a list of the potential ward’s assets and income, and a list of relatives who must be notified about the proceedings.
Following the filing of the petition, everyone involved in the process – including the alleged incapacitated person, their close relatives, and any existing legal representatives – must be formally notified. This notification process, also known as “service of process”, ensures that all parties have a fair chance to respond to the petition.
After notification, a court hearing is scheduled. This is an opportunity for all parties to present evidence and arguments to the court. The judge at this hearing will examine all presented information and assess the legitimacy of the claim that the individual in question requires a guardian.
The complexity of the guardianship greatly affects the number of hearings that are needed. If the case is particularly complicated, involves substantial assets, or is contested by one or more parties, multiple hearings may be necessary to thoroughly examine all aspects. Conversely, if the guardianship is straightforward, uncontested, and everyone involved agrees to the terms, a single hearing might be sufficient.
Once all the hearings have concluded, the judge will make a final decision on the matter. If the judge determines that a guardianship is indeed necessary, they will appoint a suitable guardian. This person is then legally responsible for the ward and must act in their best interest. The court will continue to oversee the guardian’s actions and may require periodic reporting to ensure the individual’s rights are being protected.
In sum, establishing a guardianship in the State of New York involves filing a petition, serving notice to involved parties, attending one or more court hearings, and, if successful, appointing a guardian. It is a detailed legal process that requires a clear understanding of the law and often the assistance of a qualified attorney.
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The Role of Guardianship Attorneys
The Petitioner’s guardianship lawyer files the petition to the court and represents the person who filed it. Guardianship petitions are usually filed by concerned relatives or the nursing home or long-term care facility where the person in question resides. Their lawyer advances their view or position that a certain guardian should be appointed. If you are planning to file a guardianship petition and need a lawyer, you can get in touch with our law firm.
Guardianship lawyers perform many important functions. In most proceedings, at least four lawyers are involved, if you court the judge, sometimes many more. These attorneys ensure that cases function smoothly and the rights of everyone involved are protected.
Besides the lawyer for the petitioner, there are also other attorneys involved in the guardianship. The person who is alleged to be incapacitated will be represented by an attorney, either of their own choosing or court-appointed. The court will appoint a court evaluator, who will investigate the facts and circumstances of the case and will submit a report to the judge that makes a recommendation to either allow or deny the guardianship request. Other relatives of the person alleged to be incapacitated, as well as city and state agencies, may also have attorneys involved in the guardianship.
Who Can Be a Guardian
New York law requires that the guardian be at least 18 years of age or older and also a legal resident or U.S. citizen. Typically, a guardian of an elderly person is usually an immediate adult family member such as a son, daughter, grandchild, niece, nephew or sibling.
New York courts also have the jurisdiction to appoint a qualified non-related person to act as a guardian where there is no immediate family member available. This person is usually an attorney, selected from a list maintained by the court. A guardian can be appointed as both the guardian of the person and the property or there can be two separate guardians appointed, one as guardian of the person, and one as guardian of the property. For instance, a son or daughter may be appointed as guardian of the person, but a financial advisor such as a CPA or accountant or legal advisor such as a lawyer may be appointed guardian of the property.
If the incapacitated person’s relatives have a disagreement over who should be appointed guardian, then the court will appoint a neutral non-relative guardian.
Duties of a Guardian
The guardian of the person takes care of the person’s living needs, such as grooming, bathing, meals, house cleaning, grocery shopping and healthcare needs, including medical, dental and nursing, transportation and any other personal day-to-day needs. The guardian of the property takes care of paying bills, banking, property management, collecting rents, managing the person’s business and financial accounts, filing income tax returns, obtaining government benefits such as social security, VA, Medicaid, SSI or Medicare and any other government benefits. Here is more about the responsibilities of a guardian.
Determining when to establish a guardianship is a family decision. The legalities and requirements of establishing one should be discussed with an experienced New York attorney. The attorney can prepare and file the required documents with the court and attend court hearings as well as assist with any tax matters.
If you wish to speak to a New York guardianship attorney who has experience since 2008 representing clients in Manhattan, Brooklyn, Bronx, Queens, Staten Island, Suffolk County, Nassau County and Westchester County, we at the Law Offices of Albert Goodwin are here for you. You can call us at 718-509-9774 or send us an email at email@example.com.