We turn to estate planning in order to take care of ourselves. For example, we make healthcare directives to ensure that our wishes are followed when it comes to our end-of-life care. But estate planning can help others as well. For example, some people choose to create a guardianship in order to care for a loved one who can no longer care for themselves. In New York, guardianship is generally established through an Article 81 court proceeding, in which a judge will determine whether or not an individual lacks mental capacity and the specific powers granted to the guardian. Read on to learn more about guardianships in New York and the process of creating a guardianship.

What Is a Guardianship?

Sometimes, an adult will become incapacitated and may struggle to take care of personal or financial matters on his or her own. This may also apply to an elderly or disabled adult. In these cases, the struggling individual may need help managing these aspects of his life. A family or close friend may take on the role of guardian. This will allow the individual’s loved one to handle the aspects that he is struggling with. There are different types of guardianship that allow a guardian to do different things.

When Guardianship Is Needed

  • When an adult lacks the capacity to manage their financial or personal decisions
  • When there is no valid power of attorney or healthcare proxy in place
  • When family members need legal authority to act on behalf of a loved one
  • When an individual is vulnerable to financial exploitation and neglect
  • When the court requires oversight to protect a vulnerable individual

Types of Guardianships in New York

There are several different types of guardianship that can be appointed depending on the individual and their unique situation.

Common Types of Guardianships

  • Guardian of the person: This individual makes life decisions for a person, including health care, education, and welfare
  • Guardian of the property: This individual handles decisions about the person’s money, investments, and savings. They are obligated to file an annual report about the properties
  • Guardian of the person and property: This individual is responsible for both life and property decisions
  • Guardian ad litem: This individual is assigned by a judge to act for an individual during a court case if they cannot defend their rights or protect their own interests

How These Roles Differ

  • Guardians of the person focus on healthcare and daily living decisions
  • Guardians of the property prioritized financial management and asset protection
  • Combined guardianship manages both personal and financial affairs
  • Guardians ad litem serve temporary roles during only legal proceedings

 How to Obtain Guardianship in New York

In a guardianship, one person has the legal right to make a binding decision for another person.  In some cases, a person has chosen a guardian while he or she was still of sound mind. But if a guardian was not chosen, you will have to apply for guardianship. In essence, you, as the applicant, are stating that your loved one does not have the cognitive or communicative capacity to make decisions for themselves and/or is unable to give informed consent for personal, medical, or financial affairs. Courts generally rule towards the least intrusive means.

Step-by-Step Guardianship Process in New York

  • File a petition with the appropriate court, often the Supreme Court in Putnam County
  • Provide medical and professional evidence to support claims of incapacity
  • The court appointed an evaluator to investigate the situation
  • Notification to interested parties, like family members
  • A court hearing where a judge determines the necessity and scope of the guardianship
  • Issuance of a guardianship order defining powers and responsibilities

How to Choose a Guardian in New York

If you are of sound mind, you may be able to appoint a guardian for yourself. This person would assume the role if you were to become incapacitated. As such, you should choose someone you trust, like a family member or friend, as there are a number of important responsibilities they will be responsible for.

Key Factors to Consider When Appointing a Guardian

  • Trustworthiness and ability to act in the best interest of the individual
  • Financial responsibility and organizational skills
  • Willingness to take on legal duties and reporting requirements
  • Ability to handle potential family disputes and conflicts

Guardian Responsibilities

  • Act in the best interest of the incapacitated individual at all times
  • Adhere to the specific powers as granted by the court and the New York Estates, Powers and Trusts law
  • Maintain accurate records and ensure full transparency
  • File periodic reports with the court
  • Avoid conflicts of interest

Contact Our Putnam County Estate Planning Firm

Guardianship can be an incredibly overwhelming decision and one that certainly should not be made lightly. If you or a loved one needs assistance creating an estate plan and wishes to speak with an experienced attorney, contact the Law Office of Andres D. Gil, PLLC, today.