What Does a Guardian of the Person Do in New York City?

A guardian for personal needs is appointed is to make sure that the ward is comfortable and well taken care of. The extent to which the guardian can be involved in the life of the ward will depend on the powers granted by the court. The most important personal needs powers are listed below:

Basic Personal Needs Powers – there is a set of personal needs powers that are given to most guardians. They are the powers to:

• determine who will provide personal care or assistance
• choose the place of abode
• make decisions regarding the social environment and other social aspects of the life of the ward
• determine whether the incapacitated person should possess a license to drive.
• determine whether the incapacitated person should travel, and make travel arrangements if necessary.

Nursing Home Placement – if a guardian feels that the ward is no longer able to stay in the home, and would benefit from the round the clock care of a nursing home, the guardian may place the ward in a nursing home, with court approval.

Apply for Government Benefits – a ward may need help in applying for Medicaid, SSI, Medicare, and other government benefits. A ward may also need help in recertifying for those benefits.

Make Education Decisions – this applies more to younger wards, and includes the power to enroll the ward in a suitable special education program.

Protect the Ward from Fraud – once appointed, the guardian can take measures to protect the ward from fraud. A guardian can ask the court to freeze the ward’s bank accounts to prevent theft, or if someone already stole from the ward, to order individuals to return the stolen property.

Protect the Ward from Abuse – the guardian can assess the ward’s life circumstances to determine whether the ward is being abused, and take the ward out of a dangerous environment. The guardian may even ask the court to issue an order of protection against an individual who is suspected of abusing the ward.

Even before becoming a guardian, one should contact the police if it is suspected that the ward is a victim of a crime.

The Daily Reality of Personal Guardianship

The list of formal powers above describes the legal authority of a guardian of the person. The day-to-day reality of the role is a different — and often more substantial — picture. A guardian of the person is, in practical effect, responsible for the quality of another human being's life. Where the ward lives, who provides their care, what they eat, what activities they participate in, how they spend their days — all of these are within the guardian's responsibility.

Good guardians are present in the ward's life. They visit regularly. They know the names of the caregivers. They watch for changes in the ward's condition and respond. They communicate with the medical team, the social worker, and the family. They make decisions in light of what the ward would want, supplemented by the guardian's own judgment when the ward cannot express preferences. This is real, time-consuming work.

Medical Decision-Making

One of the most consequential parts of personal guardianship is medical decision-making. The guardian is generally the person who consents to medical treatment, surgical procedures, hospitalizations, and end-of-life decisions. The Article 81 order may specify the scope of medical authority, but the guardian typically has broad authority to make routine medical decisions and a more defined authority for major or controversial decisions.

Specific areas where medical decision-making becomes complex:

• Do-Not-Resuscitate orders and other end-of-life decisions. The guardian may have authority to consent to a DNR, particularly if the ward had previously expressed wishes consistent with one. New York's Family Health Care Decisions Act provides a framework.
• Major surgery. Routine medical procedures are within the guardian's standard authority. Major surgical interventions may require additional court approval depending on the order.
• Psychiatric treatment. Treatment for serious mental illness, particularly involuntary treatment, has additional procedural protections under New York's Mental Hygiene Law.
• Refusing treatment. The guardian sometimes has to balance the medical team's recommendations against the ward's previously expressed wishes or the realistic prognosis.

Housing Decisions

Where the ward lives is one of the most consequential decisions a guardian makes. The options typically include:

• Continued residence at home with home care. Often preferred by the ward and by the family when feasible. Requires reliable home care services, appropriate equipment, and a support network.
• Assisted living. Provides housing with available assistance for daily activities. Less intensive than nursing home care, generally less expensive, but limited in the level of medical care available.
• Skilled nursing facility (nursing home). Provides round-the-clock medical care and supervision. The most intensive level of care but also the most institutional.
• Living with a family member. Sometimes the right answer when a family member is willing and able, with appropriate support.
• Adult home or other group living. Various intermediate options exist depending on the ward's needs.

The guardian's job is to match the housing to the ward's needs, the family's circumstances, and the available resources. Nursing home placement specifically may require court approval depending on the Article 81 order.

Coordinating with Family

The guardian usually has to work with the ward's family, even when the family is not unified or even when the family is in conflict. The guardian's loyalty is to the ward, not to any particular family member. The guardian has to make decisions that may not please every family member while remaining respectful and communicative with all of them.

Family disagreements about care decisions are common. One sibling wants the parent in a nursing home; another insists on keeping them at home. One family member wants aggressive medical intervention; another wants comfort care. The guardian listens to all sides, gathers the relevant clinical information, applies the standard of the ward's best interests, and makes the call. Where the family disagrees with the call, the guardian explains the reasoning. If consensus cannot be reached, the guardian can seek court instructions on contested issues.

Protecting Against Exploitation

Wards are vulnerable to exploitation. Caregivers, family members, strangers who befriend the ward, telemarketers, internet scammers — all of them can take advantage of a person who cannot protect themselves. The guardian's job includes screening for and intervening in exploitation.

Signs of exploitation to watch for include: unexplained withdrawals from the ward's accounts, gifts to caregivers or new acquaintances, changes in the ward's stated preferences after contact with particular individuals, isolation of the ward from previously close family and friends, new "advisors" or "helpers" appearing in the ward's life, signed documents the ward does not understand. The guardian who notices these patterns should act quickly — change account access, restrict visitors, document the concerning activity, and consult counsel.

Visiting and Knowing the Ward

Statutory minimums for visiting the ward are typically four times per year. In practice, an engaged guardian visits much more often. The visits accomplish several things at once: they confirm that the ward is being well cared for, they allow the guardian to identify problems early, they provide social and emotional contact with the ward, and they create a record of attention that supports the annual report.

Visits should not be perfunctory. The guardian should talk with the ward (to the extent possible), with the caregivers, with the medical staff, and with anyone else relevant. Observing the ward's environment — cleanliness, condition of clothing and bedding, mobility, mood, alertness — provides important information that paper reports cannot fully convey.

Working with Public Benefits

Many wards rely on public benefits — Medicaid, Medicare, Supplemental Security Income, Social Security retirement or disability, veterans benefits. The guardian is generally the person who applies for, maintains, and recertifies these benefits. The work is administrative but important; missing a recertification deadline can interrupt benefits that are essential to the ward's care.

The guardian also typically handles disputes with benefit agencies. If Medicaid is denied, the guardian pursues the fair hearing. If a Social Security overpayment is asserted, the guardian responds. These disputes require knowledge of the specific benefits programs and procedures.

Reporting and Court Supervision

The guardian of the person files annual reports with the court covering the ward's living situation, medical condition, social activities, and any major decisions made during the year. The reports are reviewed by the court (or by a court-appointed examiner) and either approved or questioned. A pattern of timely, complete, and well-organized reports demonstrates good guardianship. A pattern of late or incomplete reports prompts court scrutiny.

Talk to a Guardianship Attorney

If you are considering serving as guardian of the person for a family member, or if you are already serving and need legal support, contact the Law Offices of Albert Goodwin at 212-233-1233 or by email at [email protected].