What is Legal Guardianship?
Legal guardianship is an important legal concept that enables an individual to have broad authority over the affairs of another. It is a remedy often employed where the subject over whom the authority is exercised lacks the ability to make major life and financial decisions due to mental incapacity, disability, or for some other reason. (Legal guardianship should not be confused with medical guardianship or health care proxies that deal strictly with medical decisions.) In this context, legal guardianship is essential to the well-being of many people with disabilities and their families when it becomes impossible for them to manage their own affairs. Guardianship laws exist to protect the best interests of individuals who cannot care for themselves , and to ensure that the legal guardians selected by courts upon application of family members have the ability to provide or arrange for the care of the disabled individuals for whom they are responsible. There are also laws governing and protecting those individuals under legal guardianship in New York and whose rights the laws are intended to protect. The laws intend to ensure that no one is discriminated against based on any kind of assumption that all people with a particular disability are by definition incapable of managing their own affairs. Moreover, it is important to note that guardianship is not simply a remedial device for a disability that may be permanent. Guardianship can also be put into place if an individual is temporarily incapacitated (i.e., in an accident), meaning that the change in circumstances call for what family members refer to as "temporary guardianship." Although "temporary" guardianship may sound like a short term arrangement, its duration in New York is one year. If the application has been made before the expiration of a prior year’s temporary guardianship, however, a guardian can continue to serve during the pendency of the application.
Who Can be Guardian in New York?
Section 17 – Eligibility for Guardianship in New York
In New York, the court will appoint a guardian for an adult based on a strict set of criteria. Legal guardianship in New York may only be made for individuals that "have an impairment, whether because of a mental or physical condition or both, which prevents the person from adequately providing for personal needs for physical health, food, clothing, or shelter, or from managing property or financial affairs."
Generally, the court will decide to appoint a legal guardian if the adult meets this requirement, and it decides the following:
Over the age of 18
Resides in New York
Has an impairment, whether because of a mental or physical condition or both, which prevents the person from adequately providing for personal needs for physical health, food, clothing or shelter, or from managing property and financial affairs
In need of the intervention of a guardian and assistance with their financial and/or personal matters
Their rights might be affected or diminished by their impairment.
If the adult meets these requirements, the court may appoint a guardian for their personal needs, finances, or both. It will generally make its decision based on assessments by the petitioner, the proposed ward, family members, and other experts familiar with the proposed ward’s circumstances, health, and well-being.
Other factors the court looks at when deciding on whether to grant a petition for the guardianship of an adult in New York:
The person’s wishes if in writing
The person’s conduct
The extent of any assets the person possesses
Whether the proposed guardian has the capacity to care for the proposed ward’s needs
Whether there has been any undue influence or fraud in obtaining the authority of the guardian
Whether they have the ability to meet the proposed ward’s needs
The proposed guardian’s residence, and its relation to the proposed ward
Whether the proposed guardian has committed abuse, abandonment, or neglect against the proposed ward or others.
Process for Becoming a Guardian
Obtaining legal guardianship for an adult with disabilities in New York is a complex matter following the initial appointment of a Guardian for the person and property. When working with an experienced New York guardianship attorney, it is important to understand what goes into the legal process for obtaining the right authority to manage the life of your loved one. To start, the guardianship of the person and the property must be granted in two separate proceedings. This means that you will file two different cases with the Surrogate’s Court to gain the respective powers and over both the person and his or her property. The documents you will need include:
• A verified petition for letters of guardianship
• An order to show cause and, in some cases, an affidavit of personal service
• Physician’s report
• Schedules A-Z which list all real property and personal property
• Affidavit of service upon the disabled person and family members
• A report from a psychologist (in some cases)
• A petition for the appointment of a temporary guardian, if necessary
• A bond application and certification of collateral
• Acceptance by Guardian
• Order to show cause
• Order appointing temporary guardian, if needed, and a temporary restraining order
• Bond filed by the temporary guardian
• Report/Account of the temporary guardian
• Verified Petition for Appointment of Guardian with Control over Property
• Affidavit of Personal Service
• Bond Application and Certification of Collateral, and Bond Filed
• Citation and Affidavit of Service
• Physician’s Report
• Report/Account by the Guardian
• Verified account of the Guardian of the Property
• Report/Account of the Guardian of the Person
• Citation, notice, and waiver of citation (with signature affixed and notarized)
• Surrogate’s Order and Judgment Designating Guardian of the Property
• Entered Judgment and Letters of Guardianship of the Person and of the Property
• Income and Expenditure Graph, Reports, Orders to Show Cause, etc.
• Final Accounting of the Guardian of the Property
• Surrogate’s Final Accounting
• Report of the Guardian of the Person
• Affidavit of the Guardian of the Person
• Order and Judgment Settingtle Accounting, Discharging Guardian and Closing Case
• Order and Judgment Regarding Reserved Issues and Withdrawal of Exhibits
• Bond Application for Successor Guardian
• Successor Guardian Account
• Petition for Successor Guardian
• Affidavit of Service
• Surrogate’s Order and Judgment Appointing Successor Guardian, Directing Turnover of Property and Administration of Account
• Order and Judgment, Reporting, Discharging and Closing
• Report of the Successor Guardian
The Rights and Obligations of Guardians of Adults
Once a legal guardian for person and/or property is appointed by the Surrogate’s Court, the Stipulation of Settlement, Order and Letters of Guardianship, all of which would be in the case file, should set forth the duties owed by the guardian to the ward. The Stipulation of Settlement usually will adopt a statutory form, assuming the court’s auto-approval of a stipulation approved by all parties. Prior to the recent revision of New York State’s Mental Hygiene Law (MHL), the statutory form was that for a Guardian of the Person.
Under the revised MHL section 81.20, now the Duties of a Guardian of the Person, the Guardian’s duties include:
(a)(1) To exercise, so far as reasonably possible, the responsibilities of the ward’s personal autonomy or self-determination. This requires a guardian to acknowledge the expression of a competent person’s wishes and to make reasonable efforts to carry out the ward’s decisions once it is determined that they are in the ward’s best interests.
(2) To co-operate with the ward in the development of maximum self-determination and independence.
(b) To provide for care, comfort, and maintenance of the ward suitable to his or her needs. This obligation is to ensure that the ward is not subjected to any abuse or neglect in the course of meeting their needs.
(c) To take reasonable care of the ward’s clothing, furniture, vehicles, bankbooks, equipment, other personal possessions and other personal effects.
(d) To provide or arrange for provision for the ward’s medical and mental hygiene needs, including the making of appropriate advance medical directives and the payment for medical care.
(e) To obtain the ward’s consent or approval for any contract, irrevocable discharge or other transaction in any way involving the ward’s estate, unless:
(1) it is evident that because of the nature and circumstances of the proposed transaction the ward is unlikely to have the ability to understand what is required; or
(2) the person desiring to enter into the transaction is: (a) the guardian; (b) the spouse of the guardian; (c) a person who has one of the following relationships to the guardian: a parent, child, stepchild, stepsibling, or other relative or person whose relationship with the guardian would prohibit such a transaction but for [the guardian’s] appointment …"
The legal obligations of a Guardian of Property are set forth in MHL section 81.21. The basic duties of a guardian of property are:
(a)(1) to collect, hold, manage and protect all the estate of the ward;
- (2) to register the guardian’s name and address with all appropriate federal, state and local governmental agencies;
- (3) to render a written instrument, verified by the guardian before each court;
- (4) to keep all assets of the estate separate from the guardian’s own assets;
- (5) to keep clear and accurate records of all receipts and disbursements and transactions undertaken by the guardian while serving;
- (6) to make decisions and exercise judgment while acting in the same manner and with the same standard of care that an ordinary, prudent person would exercise and with the care and diligence an agent for another under similar circumstances ought to exercise.
Alternatives to Guardianship
Whether formal legal guardianship is the preferred option and necessary to ensure protection of an adult’s person and property is a highly fact-specific determination. An array of alternatives are available in New York. For example, acts of support and assistance – including piggybacking, supported decision-making and power of attorney – can effectuate personal preferences and provide protections for an adult with disabilities. Raising a less restrictive alternative at the outset may also be effective in reducing the broad scope of a legal guardianship.
Supported Decision-Making
Recently, supported decision-making utilizing the "Circle of Support" model, is gaining traction as a suitable alternative to a legal guardianship. Supported decision-making does not strip a person with developmental disabilities of the ability to make their own decisions. Instead, supported decision-making permits the individual to appoint trusted individuals who will support the adult in making informed choices. Supporters circulate and review information about the adult’s situation and convey the adult’s preferences to a third party such as a bank or medical facility. Typically, the individual appoints various types of supporters such as medical, financial, and educational supporters.
A Circle of Support Agreement is an arrangement whereby individuals are retained by the adult for the purpose of assisting them with setting and achieving goals and will help them throughout their life. This Agreement exists to augment the adult’s capacity to make independent decisions.
According to the START Project’s Supported Decision Making Initiative, the following are tasks agreed upon to be completed by Circles of Support:
Supported Decision-Making may be formalized into a written agreement between the adult and support person . In New York, a supported decision-making agreement does not need to be witnessed or notarized provided that it: contains information that is understandable by the adult; contains an explanation of the roles and responsibilities of the adult and the supporter; and contains a statement that the parties do not intend to enter into a guardianship that limits the adult’s ability to effectively execute the documents. Providing the necessary information regarding this agreement in easy to read language or pictorially assists in supporting the adult’s comprehension.
Power of Attorney
The New York State Power of Attorney Document (Dated July 1, 2018) permits adults over 18 years of age to use a Statutory Short Form Power of Attorney to designate an agent with authority to make decisions pertaining to their property and real estate. A Power of Attorney to Make Health Care Decisions for Persons with Developmental Disabilities, which is only valid until age 65, allows adults with developmental disabilities to appoint an agent to make health care decisions on the adult’s behalf. Advance Health Care Directive for People with Developmental Disabilities permits an individual to appoint an agent to make health care decisions and execute a Health Care Proxy on the adult’s behalf.
Advance Directives
Advance directives are written instructions for how an adult wants their medical care to be delivered when they are no longer able to communicate their wishes. The New York Health Care Decisions Act recognizes a patient’s right to have decisions made on their behalf when they are incapacitated. Two common types of advance directives are Living Will and Health Care Proxy and Living Will and Health Care Proxy for Individuals with Developmental Disabilities.
Other programs
Other alternatives to guardianship and supportive decision-making alternatives are available to aid the adult with disabilities in making informed decisions. They include Medicaid Special Needs Trust, Supplemental Needs Trust, Medicaid and Public Benefits Issues.
There are many alternatives to formal legal guardianship in New York.
Challenging a Guardianship
In New York, any person who believes that a guardian has been unwisely named or who would like to serve as a guardian may file a petition to contest an existing guardianship. A petition to contest a guardianship can be filed at any time during the term of the guardianship. The petition must be addressed to a Judge of the Supreme Court of the State of New York (the trial court of general jurisdiction). Often the petition is filed with the Surrogate’s Court ("SCP"), which is the court that typically handles guardianship matters. The SCP will forward the matter to Supreme Court for determination.
The petition must include a statement of the grounds for the objection, the facts upon which the objection is based and the relief sought. A Notice of Petition and supporting affidavit must be served upon the Guardianship and their Attorney at least 10 days before the petition is returnable. Those persons served may respond by filing Affidavit(s) in opposition to the petition to contest the guardianship. The court may deny the objection and the petition to revoke without a hearing, or may schedule a hearing to determine the validity of the objection and the petition to revoke. If a hearing is ordered, the Guardian may be removed and replaced if the opposing party demonstrates to the Court that good cause exists and the best interests of the adjudicated person (as well as that of the Guardian, if the Guardian is contesting his/her removal) will be served thereby.
Referral Sources and Supportive Agencies
A variety of organizations offer support and resources for individuals seeking guardianship, those currently under guardianship in New York, and other family members and people interested in learning more about the process and its effects in their lives. The New York State Developmental Disabilities Planning Council offers a pamphlet detailing the different types of guardianship in the state, including a list of legal offices that provide services to residents interested in petitioning for guardianship. Legal services exists in every state , usually funded on the county or city level, and offers valuable assistance when navigating the complex legal waters of Guardianship and Conservatorship. There are also numerous advocacy groups, such as the self-advocacy organizations at Self-Advocacy Online, which empower disabled individuals to pursue their independence. Individuals who wish to learn more about specific advocacy groups, organizations, or legal offices may want to contact the National Guardianship Association for the best contacts and sources of information.