Guardian for an Adult in New York

In New York, a guardian for an adult is appointed when an adult is deemed mentally incapacitated and unable to make decisions concerning their personal needs and/or to manage their properties. The appointment of a guardian requires the court to determine that the individual is indeed incapacitated and that guardianship is necessary to protect their interests.

In New York, adult guardianship is divided into two categories: Article 81 guardianship, which is designed for adults who have been rendered incapacitated and unable to manage their personal or financial matters due to mental illness, physical ailments, disabilities, or substance abuse; and Article 17-A guardianship, which is specifically intended for adults with intellectual or developmental disabilities that emerged before the age of 22, such as cerebral palsy, epilepsy, and autism, and are anticipated to be lifelong conditions.

Article 81 Guardianship

To prove incapacity under Article 81 Guardianship in New York, it must be demonstrated that the alleged incapacitated person (AIP) is incapable of meeting their basic personal needs, such as obtaining adequate nutrition, housing, medical care, and ensuring their own safety. To appoint a property guardian, it must be proven that the AIP is unable to effectively manage their property and financial matters. In addition, the AIP must lack the capacity to comprehend and appreciate the potential consequences of their inability to fulfill personal needs or handle property and finances, and as a result, be at risk of suffering harm.

Types of Guardians in New York

In New York, the court has the authority to appoint different types of guardians to address the specific needs of an incapacitated individual. These guardian types include:

Personal Needs Guardian

A personal needs guardian is responsible for making critical decisions regarding the incapacitated person's wellbeing and quality of life. This includes:

• Healthcare decisions, such as managing medical treatment, medications, and end-of-life choices

• Determining the individual's living arrangements, including choice of residence and level of care

• Applying for and managing government benefits and private insurance coverage

• Accessing the individual's confidential records, such as medical and financial information

• Making decisions related to the person's education, vocational training, and social activities

• Ensuring proper nutrition, hygiene, and personal care for the individual

Property Management Guardian

A property management guardian is tasked with overseeing the incapacitated person's financial affairs and assets. The guardian's responsibilities in this role include:

• Paying bills and managing the individual's income and expenses

• Negotiating and executing contracts on the person's behalf

• Conducting financial transactions, such as banking and investing

• Filing tax returns and managing tax-related matters

• Collecting the individual's income from various sources

• Accessing and monitoring bank accounts and financial records

• Creating and funding trusts for the person's benefit

• Applying for and managing public benefits related to the person's property and finances

Plenary Guardian

In some cases, the court may appoint a plenary guardian who is granted authority over both the incapacitated person's personal needs and property management. This comprehensive form of guardianship is typically reserved for situations where the individual requires complete assistance and oversight in all aspects of their life.

Plenary guardianship requires careful consideration and ongoing monitoring to ensure the guardian is acting in the best interests of the incapacitated person and not exceeding the specific powers granted by the court order. The guardian must balance the individual's need for protection with the preservation of their rights, autonomy, and dignity to the greatest extent possible.

Regardless of the type of guardian appointed, the court's primary objective is to implement the least restrictive form of intervention necessary to meet the incapacitated person's needs while safeguarding their wellbeing and rights.

Legal Process

To initiate court proceedings for guardianship, a verified petition must be filed with the court. The petitioner, who can be the alleged incapacitated person (AIP), a concerned family member, friend, or any other interested party, is responsible for submitting this petition. The petition should comprehensively outline the AIP's personal information, the justification for seeking guardianship, details about the proposed guardian, the specific powers requested for the guardian, the AIP's alleged functional limitations, and recent behaviors that demonstrate their incapacity. Additionally, the names and contact information of all interested parties must be provided. To support the claim of incapacity, the petition must include a thorough description of the AIP's alleged incapacities and how they impact their decision-making abilities, along with relevant medical evidence and functional assessments that clearly illustrate the extent and nature of the AIP's limitations.

Parties in a Guardianship Proceeding

The parties in a guardianship proceeding are the court, the AIP, the AIP's attorney, the court evaluator, the court examiner, the petitioner, other interested parties, and the guardian for the adult.

The alleged incapacitated person (AIP), for whom guardianship is sought, has the right to attend the hearing, be represented by counsel, object to the petition, and may provide testimony and evidence. The AIP's attorney, appointed by the court, advocates for the AIP's interests and wishes, safeguards their legal rights, and may cross-examine witnesses and present evidence on the AIP's behalf. The court evaluator, also court-appointed, investigates the petition's allegations, reports findings, interviews relevant parties, reviews medical and financial records, and provides recommendations on the AIP's capacity, the need for guardianship, and the proposed guardian's suitability. The court examiner, appointed post-guardianship, oversees the guardian's performance, reviews annual reports and accountings, investigates complaints, and reports findings and recommendations to the court. Interested parties, such as family members or designated agents, must be notified of the proceeding, may attend the hearing, provide testimony and evidence, and have the right to object to the petition or suggest alternative arrangements.

Once the court determines that the AIP is mentally incapacitated, a guardian is appointed, either for personal needs, property management, or both. The guardian can be a family member or friend. Usually, however, family members such as spouse, adult children, siblings, or other relatives are often appointed as guardians.

Duration and Modification

Guardianship is typically a long-term arrangement, extending throughout the incapacitated person's lifetime until the court deems it no longer necessary or the individual passes away. However, in certain instances, such as during a temporary illness or injury recovery, guardianship may be established for a specific duration.

As the incapacitated person's needs or circumstances evolve, the court possesses the power to modify the guardian's granted authority. The guardian, incapacitated individual, or any interested party may petition the court to expand, restrict, or otherwise adjust the guardian's powers, prompting the court to hold a hearing to assess the requested modifications and determine their alignment with the incapacitated person's best interests.

In situations where the current guardian becomes unable, unwilling, or unfit to continue their role, the court may appoint a successor guardian. Reasons to replace a guardian are the guardian's death, incapacity, resignation, failure to fulfill duties or prioritize the incapacitated person's best interests, abuse, neglect, and exploitation of the incapacitated individual. Any interested party may petition the court to remove the current guardian and appoint a successor.

Navigating the intricacies of the guardianship process often necessitates the skilled guidance of a legal professional. In matters of guardianship, time is of the essence, as any delay in appointing a guardian can result in significant financial ramifications, particularly when the incapacitated individual lacks the capacity to effectively manage their assets and property. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. You can call us at 212-233-1233 or send us an email at [email protected].