A person who cannot manage their own personal or financial affairs can be helped by a guardian.
Guardianship law focuses on protecting an individual who is not able to make decisions because of age, illness or incapacity. The court has the power to appoint a guardian to make personal and financial decisions for a person under Article 81 of New York’s Mental Hygiene Law.
The responsibilities of a guardian may vary, depending upon the situation, and can be designed to meet the specific needs of the individual. A guardian could be responsible for all legal, financial and medical decisions – that is referred to as “full authority.”
Guardianships are filed for people with intellectual or developmental disabilities as well as for the elderly or sick who are unable to make their own decisions. They are also used for minor children if their parents have died and there is no will naming a guardian.
An Overview of the Guardianship Process
A legal proceeding must be brought to request that a person be named guardian. While the court usually prefers that family members or close and trusted friends take on this responsibility, if there necessary, an independent guardian may be named.
A non-family member must obtain a bond, which is similar to an insurance policy, equal in value to the assets owned by the person, to protect them from wrongful conduct by the guardian. The court monitors the guardian, requires that reports be filed with the court and seeks to protect the individual as best as possible.
The guardianship petition must include a complete description of why the person in unable to function. The court will assign an evaluator who will meet with the person and speak with them about their condition and ability to care for themselves. The evaluator may be a representative from a mental hygiene legal service, an attorney, a physician, a psychologist, a social worker or a nurse. The court will have a list of people who have been approved to serve as an evaluator.
The evaluator then files a report that includes their own observations, and the judge will schedule a hearing.
The person who needs help may not want a guardian, and they have the right to dispute the process. In some cases, this can lead to a jury trial. But in most cases the court makes the decision about whether or not a guardian is necessary, and then decides who to appoint.
Special Needs Guardianship
A child with special needs will benefit from having a guardianship in place by the time they are 18, when they become a legal adult. A guardian will be appointed by Surrogate’s Court. This is typically the parents of the child. The parents should also name a successor guardian, so that if something should happen to the parents, the child is not without a guardian.
The attorneys at the Law Office of Stephen J. Silverberg help families protect their loved ones with guardianship proceedings. We can help in drafting and filing a petition for guardianship, representing the family through the guardianship hearing and helping to gather the necessary testimony and support materials to show the reason for the need for guardianship.
Contact our office at 516-307-1236 to discuss your guardianship needs.