What are the Responsibilities of a Guardian in New York?

To find out their responsibilities, the guardian should read the Guardianship Order.

New York Guardianships are narrowly tailored to fit each incapacitated person’s unique situation. For that reason, every New York guardian’s duties vary on a case to case basis. In most instances, a list of the guardian’s duties can be easily found in the Guardianship Order. Here is a typical list:

1. Making sure the incapacitated person is safe;
2. Managing the finances of the incapacitated person, including paying bills, collecting assets, making investments, and exercising any financial rights that the incapacitated person would be able to;
3. Making healthcare decisions for the incapacitated person;
4. Determining where the incapacitated person should live and whether nursing home placement is appropriate;
5. Providing the incapacitated person with proper medical care and daily living upkeep, such as cleaning the residence, getting adequate home care, grooming, dressing, bathing, and so forth;
6. Petitioning the Family Court for orders of protection if physical abuse is an issue;
7. The guardian may also be given the authority to make gifts to reduce estate taxes;
8. The guardian may be in charge of taking steps necessary to obtain Medicaid for the incapacitated person;
9. The guardian must file annual reports regarding income and disbursements for the incapacitated person;
10. Visit the incapacitated person at least 4 times a year;

This list is by no means exhaustive. We strongly urge you to consult your guardianship order for specific duties, and contact a guardianship attorney if you have any doubts or questions.

An experienced estate attorney can help you get appointed as a Guardian in New York City and can assist you with issues that arise in the Guardianship. If you have a question about New York Guardianship, call the Law Offices of Albert Goodwin at (212) 233-1233.

The Fiduciary Foundation of Guardianship

Underneath the specific powers and duties listed in any individual guardianship order is the fundamental concept that a guardian is a fiduciary. The guardian holds authority over another person's life and assets, and the law imposes the highest standard of conduct on people in that position. The fiduciary duties include loyalty (acting in the ward's interest, not your own), care (acting with the prudence of a reasonable person handling their own important affairs), good faith (acting honestly), and accountability (keeping records and providing them when required).

These fiduciary duties apply whether or not they appear in the guardianship order. A guardian who self-deals, who fails to keep records, who uses the ward's assets for personal benefit, or who treats guardianship as a casual arrangement is in violation of fiduciary duty even if the specific order does not spell out the duty in those terms.

The 90-Day Initial Report

One of the first formal responsibilities of a new guardian is to file an initial report within 90 days of appointment. The report sets the baseline against which the guardianship will be measured going forward. It lists the ward's assets at appointment, the ward's debts and recurring obligations, the ward's income, and the ward's residence and other living circumstances. For property guardians, the inventory is particularly detailed — every bank account, every brokerage account, every parcel of real estate, every significant item of personal property.

The 90-day report has to be filed even when the guardian is busy with the urgent practical tasks of getting bills paid and arrangements stabilized. The court takes the deadline seriously. Failure to file a timely initial report can lead to court orders to compel, removal of the guardian, and personal liability for any losses caused by the delay.

The Annual Report

Each year of guardianship requires an annual report covering the prior twelve months. The report documents:

• All income received during the period — Social Security, pensions, interest, dividends, rental income.
• All disbursements made — bills paid, distributions to the ward for living expenses, professional fees.
• Investment results — appreciation or depreciation, gains and losses on sales.
• Material decisions made — placement changes, major medical decisions, sale of significant assets.
• The ward's condition at the end of the period and any anticipated changes.

Annual reports go to the court examiner, who is a court-appointed attorney whose job is to scrutinize the report and either approve it or raise questions. The examiner has substantial power to delay approval, request additional records, or recommend court action if the report reveals problems. Guardians who are well-prepared, well-organized, and transparent in their reporting generally have a smooth annual process. Guardians who are casual about record-keeping and slow to respond to examiner inquiries face more difficulty.

Bonding and Court Approval for Transactions

Most property guardianships require a bond. The bond protects the ward against the guardian's misconduct and is set at an amount proportional to the assets under guardianship. The bond is paid for from the ward's funds.

Certain transactions require advance court approval. Selling real estate, making gifts from the ward's assets, settling major legal claims, and engaging in Medicaid planning all typically require a petition to the court and an order before the guardian can proceed. The court reviews the petition and either approves the proposed transaction, modifies it, or denies it. This safeguard prevents major decisions from being made without appropriate scrutiny.

Healthcare and Personal Care Responsibilities

A guardian of the person has responsibilities that extend well beyond paperwork. The guardian decides where the ward lives, what medical care the ward receives, who provides home care, what activities the ward participates in, and how the ward's day-to-day needs are met. These decisions should reflect the ward's preferences to the extent the ward can express them, and the ward's previously expressed wishes when current expression is not possible.

The guardian should visit the ward regularly — the typical minimum is four times a year, but most well-functioning guardianships involve much more frequent contact. The visits serve multiple purposes: they confirm the ward is being well cared for, they provide social and emotional connection that benefits the ward, they allow the guardian to identify problems early, and they create a record of attention that supports the annual report.

Coordinating with Care Providers

Most wards have multiple care providers involved in their lives — a primary care physician, specialists, home health aides, social workers, case managers, and others. The guardian's job is to coordinate among these providers and ensure that information flows so that decisions are well-informed. The guardian holds the HIPAA authorization that allows providers to share information. The guardian signs the consent forms for medical procedures. The guardian provides direction when providers ask for guidance about scope of care.

Working with the Family

The guardian typically is a family member but not always. Even when a family member serves as guardian, other family members usually have an interest in what happens. Sibling tensions, in-law dynamics, and disagreements about care decisions can complicate the guardian's work. The best guardians keep family members informed without being captured by any one family member's agenda. The ward's interests come first.

Where family disputes become serious, the guardian may need to seek court instructions. A neutral order from the court can settle a dispute that the family cannot resolve on its own. Some families also benefit from working with a geriatric care manager, family mediator, or therapist to address the emotional and relational issues that often surface around a parent's incapacity.

Medicaid and Public Benefits Planning

Many guardianships involve a ward who may need or already receives Medicaid. The guardian's role in this area includes applying for benefits, maintaining eligibility, planning to qualify when the ward's resources push above limits, and dealing with periodic recertification. Medicaid planning by a guardian generally requires court approval, particularly when the planning involves transfers to family members or to special needs trusts. The court will approve planning that benefits the ward and follows the applicable rules.

Concluding the Guardianship

A guardianship ends when the ward dies, when the ward regains capacity, or when the court terminates the guardianship for other reasons. The guardian files a final report covering the period from the last annual report through the termination event. Any remaining assets are turned over to the appropriate party — to the ward's estate if the ward died, back to the ward if capacity is restored, or to a successor guardian if a new guardian has been appointed.

The guardian's discharge depends on the final report being filed, the assets being properly turned over, and the court being satisfied that the guardian's duties have been fulfilled. The discharge protects the guardian from later claims regarding the guardianship period.

Common Mistakes That Lead to Guardian Removal

Guardians who get into trouble usually have made one or more of these mistakes: commingling the ward's funds with personal funds, failing to keep records, missing reporting deadlines, paying themselves without court approval, making investments outside the prudent investor rule, failing to visit the ward, or putting personal convenience above the ward's interests. We help guardians avoid these mistakes through systematic record-keeping practices, calendar systems for deadlines, and regular communication with the family and the court.