How Guardianship Works in New York City

A guardianship is a legal arrangement where a court gives one person the authority to make decisions for another person who cannot make responsible decisions for themselves.

Guardianship can be necessary. But it also involves revoking a person’s freedom to make their own life decisions. For that reason, there are times when people disagree on whether guardianship is right for the individual.

You would need a New York City guardianship attorney to guide you through the process.

New York has three types of guardianship: for the developmentally disabled, minor children, and incapacitated adults. We will discuss all three in turn, starting with guardianship for incapacitated adults.

Guardianship for an Incapacitated Adult

The court will appoint a guardian for an adult who can no longer take care of themselves.

Common signs that a person cannot take care of themselves include the inability to:

• Get and prepare nutritious food
• Maintain personal hygiene
• Access safe housing
• Avoid unsafe situations or individuals
• Pay bills and manage finances
• Consent to needed medical treatment or to discharge from a medical facility

Not everyone needs a guardian. Every adult has the legal capacity to make their own decisions unless proven otherwise. Even if they are a senior. But many people are incapacitated and do need the help.

The Steps of the Guardianship Process

Here is a simplified overview of the steps of this guardianship process:

• A person files a guardianship petition

  A person files a petition telling the court that a person lost the capacity to take care of themselves. Sometimes, the person’s relatives object to the petition.

• The same person provides notice

  After the petition is filed, the court will set a hearing date. The individual in question, along with close family members, must be formally notified of the petition and the hearing.

• The judge appoints a court evaluator

  The court will appoint an evaluator to investigate and provide a recommendation to the court. The evaluator will meet with the individual, evaluate their living conditions, assess their understanding and capacity, and interview the petitioner and any other interested parties.

• The judge may issue interim guardianship

  In situations where immediate action is required to protect the individual or their assets, the court may appoint a temporary guardian pending the outcome of the full hearing.

• The court evaluator submits a report

  After the court evaluator is done evaluating the case, they will submit a report. The report will state whether they feel the adult needs a guardian.

• The judge holds hearings

  The court will hold hearings. Most hearings are focused on resolving the case with the agreement of everyone involved. If a resolution is not possible, the judge will hear testimony and examine evidence on whether the adult can manage their financial and personal needs. The judge will hear from the petitioner, the court evaluator, and any other relevant parties.

• The judge deliberates

  The judge decides whether to appoint a guardian. If the judge appoints a guardian, the judge gets to decide who it will be, and on what terms.

• The judge issues a decision and order

  Based on the evidence presented, the judge will decide whether guardianship is necessary and if so, who the guardian should be.

• The court issues a guardianship commission

  If the court approves the guardianship, it will issue an order that specifies the powers granted to the guardian, as well as a Guardianship Commission, which is a legal document that authorizes the guardian to act on behalf of the ward. The guardian may need to complete a training course and may be required to post a bond before the guardianship commission is issued.

• The guardian submits yearly reports

  Guardians are typically supervised by the court, which may require annual reports or more frequent updates on the ward’s condition and the management of their affairs.

Disputes Over Incapacity

There are often disputes over whether an individual is truly incapacitated and in need of a guardian. Family members or the allegedly incapacitated person themselves may sincerely disagree about the person’s mental capacity and ability to make decisions.

When there are disputes over capacity and the need for guardianship, it can lead to contested litigation with various parties arguing their position to the court. There may be competing guardianship petitions filed or objections submitted to challenge the claims of incapacity.

In these contested cases, additional legal procedures come into play and the judge resolves the dispute after hearing evidence and testimony on all sides. Determining the truth about an individual’s capacity can be complex when family members have conflicting views and interests.

An experienced guardianship litigation attorney can help gather supporting evidence of capacity or incapacity and advocate effectively to the court. Contested guardianship cases require the determination of whose narrative aligns with the individual’s actual functional abilities.

Objecting to a Guardianship

Guardianship involves revoking an adult’s independence, which raises justifiable objections in some cases. People who disagree with guardianship can oppose it in various ways. You can object to the guardianship if evidence of incapacity is lacking or exaggerated. Challenge physician affidavits and investigator reports. You can also argue for less restrictive alternatives like supported decision-making arrangements, power of attorney, or limited guardianship.

Disagreement Over Who Should Be Guardian

If more than one family member seeks to become the guardian, the court will usually appoint a neutral third party to act as guardian instead. This is done to avoid conflicts of interest and provide an unbiased decision-maker focused on the well-being of the incapacitated individual.

The neutral guardian would be a licensed professional. They could be an attorney or social worker. They have training and experience in acting in the best interests of the individual.

A Guardianship Protects Against Financial Exploitation

When there are claims an elderly or otherwise vulnerable adult is the victim of financial exploitation or abuse, establishing a guardianship can offer important protections if those claims are legitimate. However, not all allegations of abuse made when pursuing guardianship are necessarily true.

If an independent, accountable guardian is appointed to manage finances, the guardianship removes the opportunity for further abuse and ensures funds are handled appropriately.

But petitioners must still demonstrate abuse allegations through proper evidentiary standards. Guardianships can provide necessary protections from harm if exploitation is occurring.

The Role of The Court Evaluator

The court will appoint an independent evaluator to investigate the situation. The court evaluator has an important role as the “eyes and ears” of the court.

The evaluator will:

• Interview the allegedly incapacitated person to assess their mental capacity and ability to make decisions
• Speak with family members, doctors, caregivers, and anyone else involved
• Review medical records, financial documents, and other evidence
• Consider whether less restrictive alternatives may be appropriate
• Determine if there are any disputes or concerns among family members
• Make a recommendation to the judge on whether guardianship is necessary and who should be appointed as guardian

The court evaluator submits a written report of their findings and recommendations. The judge relies heavily on the court evaluator’s report when deciding on a guardianship petition. Both the petitioner and the allegedly incapacitated person have a right to disagree with the report.

The Rules on Medical Testimony

There is an important evidentiary rule in Article 81 guardianship proceedings – testimony from the allegedly incapacitated person’s treating physicians or medical professionals is not admissible.

The rationale is that allowing the individual’s doctors and therapists to testify would violate doctor-patient confidentiality. There are also concerns it could bias the court towards an overreliance on medical evidence, rather than focusing on the person’s functional limitations.

While testimony from the allegedly incapacitated person’s own medical team is prohibited, the court can allow testimony from an independent medical expert who examines the individual. However, Article 81 guardianship is based on the person’s capacity to manage daily living activities, not on diagnostic medical evidence.

Alternatives to Guardianship

There are less restrictive options, like powers of attorney, trusts and advance directives. A lawyer can advise if alternatives may work.

If There is  A Power of Attorney, That Can Mean No Guardianship

An adult who previously executed a power of attorney can have the agent make decisions for them even if they later become incapacitated. However, if the agent is taking advantage of the adult, the court can set aside the power of attorney.

Guardianship Hearings

There are usually multiple hearings in a guardianship case. At the first hearing, the court makes sure that the potential ward is safe, which often means appointing a temporary guardian for the time-being. It is possible that by the time the first hearing happens, the temporary guardian is already appointed, as well as the court evaluator and attorney for the alleged incapacitated person. At the first hearing, the judge sets the schedule for the process and looks into making an agreement in case the matter is contested. The judge also determines whether the alleged incapacitated person needs to be present at that hearing or subsequent hearings.

During the subsequent hearings, the judge deals with different matters in the guardianship, making sure the allegedly incapacitated person is safe, and dealing with schedule or other issues. Eventually, there is usually an agreement to appoint or not appoint a guardian, who the guardian will be, and what is the scope of the guardianship.

In case there is no agreement, or if the case is complicated, the later hearings will be conducted similarly to a trial. The court will take a close look at all the evidence presented and hear from the relevant parties to determine if guardianship is required and, if so, who should be appointed as guardian. Here is what typically transpires during a guardianship hearing in New York:

• The judge starts the hearing

  The judge oversees the hearing and can question witnesses or parties at any time. The judge directs the flow of the hearing.

• The petitioner presents his case

  The petitioner presents their case first, with testimony from any relevant witnesses and submission of evidence. Even in an uncontested case, the petitioner must still demonstrate the need for guardianship. The petitioner must prove that the proposed ward is indeed incapable of managing their personal and/or financial affairs due to an incapacity. This evidence can include medical testimony, expert opinions, and personal observations.

• The objectant presents his case

  If any objections were filed, the objecting party can present witnesses and evidence for their side.

• The court evaluator presents his case

  The court evaluator will testify about their investigation and recommendations. The court evaluator’s presentation is crucial as it provides an objective viewpoint on the necessity and suitability of a guardianship.

• The AIP’s attorney gets involved

  The allegedly incapacitated person’s attorney can cross-examine witnesses and object to any testimony or evidence throughout the hearing.

• The judge deliberates and issues a ruling

  After hearing all the evidence and arguments, the judge will deliberate and then issue a decision. If the judge determines that guardianship is necessary, they will also decide what types of decisions the guardian will have the authority to make and what limitations, if any, should be placed on the guardian’s powers.

• The judge (possibly) appoints a guardian

  If the court appoints a guardian, it will issue an order that details the guardian’s duties and powers. The court strives to tailor the guardianship to the needs of the individual, imposing the least amount of restriction necessary to provide for their care and management of their affairs.

The Judge’s Ruling and Order

After the presentation of evidence and testimony at the guardianship hearing, the judge will issue their ruling on whether a guardian should be appointed.

If the judge finds clear and convincing evidence that the individual is incapacitated and in need of a guardian, the court will issue a written order and judgment appointing a guardian.

The judge’s order will specify:

• Whether the guardianship covers personal needs, property management, or both
• Any powers or limitations on the guardian’s authority
• Who is appointed as guardian and any successor guardians
• Anything else the court finds appropriate

The appointed guardian cannot act until the judge’s written order and letters of guardianship are issued. The court maintains oversight and can later modify or revoke the guardianship as needed.

Guardianship For Developmentally Disabled Adults

Article 17-A of the Surrogate’s Court Procedure Act provides for guardianships for adults over 18 with intellectual or developmental disabilities, such as autism, cerebral palsy, or Down syndrome. To apply for this kind of guardianship, you would need to fill out some forms and have doctors fill out some forms, submit them to the court and come to an appointment that the court staff will schedule for you. The process of applying for Article 17-A guardianship is very straightforward and the court staff is helpful. The DIY forms are available online.

Guardianship For Minors

Article 17 of the Surrogate’s Court Procedure Act provides for the appointment of guardians for minors (under 18 years old) in certain situations, including:

• When the parents are unable or unwilling to fulfill their parental duties towards the child
• When the parents’ rights have been taken away or restricted by the court
• When the minor has come into or expects to receive money or property worth over $10,000

Article 17 guardianship terminates once the minor turns 18.

Guardian Duties and Ongoing Responsibilities

Assuming the role of a guardian is a profound responsibility, one that requires a deep understanding of the legal and ethical duties involved. In New York, guardians are entrusted with a considerable level of control over their ward’s affairs, but with that control comes an obligation to act in the best interest of the ward at all times. Here are some of the critical responsibilities of New York guardians:

• Make personal decisions

  Guardians make decisions about the living arrangements and personal care of the ward. This includes ensuring proper medical care, deciding on living conditions that are safe and conducive to the ward’s well-being, and even making end-of-life care decisions if necessary.

• Manage finances

  For guardians of the property, the duty includes managing the ward’s finances. They must handle the ward’s assets prudently, pay bills, collect income, budget for the ward’s needs, invest wisely, and protect assets from loss. They are responsible for maintaining a full and accurate record of all transactions made on behalf of the ward.

• Make general decisions

  Guardians make decisions that align with what they believe the ward would choose if they were able to make a competent decision (known as “substituted judgment”) or, if that’s not possible, what is in the ward’s best interest.

• Submit an annual report to the court

  Guardians are required to provide annual reports to the court detailing the ward’s well-being and the status of their financial affairs. This ensures transparency and allows the court to monitor the guardian’s actions to protect the ward’s interests.

• Advocate for the incapacitated person

  A guardian acts as an advocate for the ward’s rights and best interests. This can sometimes involve securing legal representation in matters that affect the ward’s well-being or property.

• Consent to medical treatment and discharge

  Guardians may be authorized to give consent for medical procedures or treatments if the ward is not in a position to provide informed consent themselves. They may also consent to discharge from a medical facility.

• Oversee support services

  They are also responsible for ensuring that the ward has access to appropriate educational opportunities and support services, tailoring these to the needs of the individual.

• Monitor and visit the incapacitated person

  Regular monitoring and personal visits are crucial. The guardian must maintain enough contact with the ward to know their capabilities, limitations, needs, and preferences. The guardian must visit the ward in person at least four times a year.

New York Guardianships FAQs

Here are answers to some common questions about guardianships:

• Who can file for guardianship?

  A guardianship can be filed by a spouse, parent, adult child, or close relative. Guardianships can also be filed by a healthcare facility.

• Does the proposed guardian need to be a New York resident?

  No, but they must be over 18 and have no felony convictions.

• How long does the guardianship process take?

  On average a little over a year. But can vary based on the complexity and whether someone files objections. A temporary guardian can be appointed right away if needed.

• Who pays the attorney fees?

  Typically the petitioner seeking guardianship pays initial fees. The fees can later be reimbursed by the guardian, from the incapacitated person’s assets.

• Can a guardianship be terminated?

  Yes. The court can terminate the guardianship. But only if the person regains capacity, which is not a common occurrence.

If you need a guardianship attorney in New York City, we at the Law Offices of Albert Goodwin are here for you. We are located in Midtown Manhattan in New York City. You can call our office at 212-233-1233 or send us an email at [email protected] to discuss your situation. Contact us today and schedule a consultation with one of our seasoned guardianship attorneys.

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