One important value that people of all ages throughout our society hold (especially our seniors), is independence. Independence is engrained in our society and is arguably the one true common factor throughout our nation. But our definition of independence extends far beyond the broader concept of political self-governance to the desire for every individual to be able to make his or her own decisions and for our wishes to be honored. Unfortunately, our individual independence can be limited through the loss of one’s capacity. For those individuals who do not have advance directives, the inability to make personal and financial decisions can result in the need for a court-appointed guardian. The process of having a guardian appointed can be complicated and costly.

For those individuals who do not have advance directives, the inability to make personal and financial decisions can result in the need for a court-appointed guardian.

There are 3 basic types of Legal guardianship NY

Article 81 Guardianship

Article 81 Guardianship

An Article 81 Guardianship is appropriate for an individual who, at one time, was competent but not suffers from either functional or cognitive limitations that limit their ability to complete daily activities without help from others. In some cases, the limitation may be the result of an unexpected illness, sudden accident or a slow progressive disease

Article 17A Guardianship

Article 17A Guardianship

Often, parents of children with special needs, whether developmentally disabled or intellectually disabled, assume they may continue to make decisions of their child’s behalf even after the child reaches the age of majority or 18 years of age. However, once the child reaches the age of majority, no other person has the authority to make medical, personal and/or financial decisions for that individual. In order to legally be able to make decisions for an adult under a developmental disability, a guardianship proceeding is required.

Article 17 Guardianship (for a minor)

Article 17 Guardianship (for a minor)

In instances where a minor’s property is valued at more than $10,000, a court must oversee the management of the assets. This usually occurs when a minor has either inherited funds or property after a loved one deceases or when a personal injury lawsuit is settled. The objective of the law is to protect the gained assets of the minor throughout childhood. After reaching the age of majority, the assets are turned-over to the child.

Financial Decisions

A guardian can make a broad range of financial decisions on behalf of an incapacitated person. The guardian is usually a family member or close friend, who can be given the power to:

  • collect and invest the person’s assets
  • expend assets and income on any of the person’s needs
  • sell the person’s residence
  • protect the person’s assets in such a way as to maximize government benefits (such as SSI and Medicaid)
  • make gifts of the person’s assets to his or her loved ones
Adult guardianship NYC
Special Needs Trusts

A guardian can set up a Special Needs Trust. The trust will allow a trustee to hold the person’s assets for his or her benefit without compromising Medicaid eligibility, subject to certain conditions. This is a vital planning tool for all incapacitated persons under age 65 who have assets.

Personal Decisions

A guardian can also make important personal decisions for the incapacitated person regarding routine and major medical and dental treatment; living arrangements; educational and training opportunities, and the application for government benefits including SSI and Medicaid.

How to Become a Guardian

Your attorney petitions the appropriate court and asks that the court appoint you (or, if you wish, someone else) as guardian. The court decides whether or not a guardian is needed, who should be appointed, and what financial and/or personal decision-making powers the guardian should have. Once appointed, the guardian can begin to act on behalf of the incapacitated person.

How to Become a Guardian

Your attorney petitions the appropriate court and asks that the court appoint you (or, if you wish, someone else) as guardian. The court decides whether or not a guardian is needed, who should be appointed, and what financial and/or personal decision-making powers the guardian should have. Once appointed, the guardian can begin to act on behalf of the incapacitated person.

Benefits of Legal guardianship NY

  • Protection of assets from loss or waste
  • Access to money to make necessary expenditures
  • Investment of the assets according to a prudent investment plan
  • Medicaid planning
  • Special Needs Trusts
  • Sale of residence
  • Medical and dental treatment decision-making
  • Living arrangements
  • Health care decisions
  • Tax and estate planning
  • Creation of living trusts

Legal guardianship NY

Does a loved one, friend, relative or neighbor lack the ability to properly care for him or herself? Whether such inability is due to age, illness, exploitation, lack of family or support in the community, The Law Offices of Frank Bruno, Jr. can provide the insight necessary for you to decide whether or not to pursue the appointment of a legal guardian.

The appointment of a Guardian is a serious legal matter affecting the fundamental rights of another person. Deciding whether to pursue the appointment of a guardian is the first step and deciding what type of guardianship is the next. The various courts and types of guardianship proceedings available can be confusing. We can help.

Whether you are seeking to have a guardian appointed, opposing a guardianship case brought by someone else, modifying a guardianship, or whether you require assistance with an existing guardianship matter, our firm, with over one hundred active guardianship cases, has the ability and experience to assist you with all aspects of guardianship law.

Types of Guardianship Proceedings

There are four types of Guardianship proceedings in New York which are governed by the three separate bodies of law:

Legal guardianship ny

Existing Guardianships Matters

Once a guardian is appointed the Court continues to have jurisdiction over the guardian and the subject individual. This judicial oversight includes an ongoing obligation requiring the guardian to periodically provide the Court with reports of their activities relating to the personal needs of the subject individual and as to the guardian’s management of the property of the individual. This is typically true for Article 81 Guardians and property management guardians appointed pursuant to the SCPA.

Following the appointment of a guardian by the Court it may be necessary for the guardian to fulfill certain requirements as directed by the judge. These may include: 1) the posting of a bond to protect the assets of the subject individual; 2) the filing of an oath & designation; and 3) obtaining a certified commission or decree confirming the appointment

During the initial guardianship period, a guardian may be required to attend training and file an initial report with the Court and an annual report each year thereafter. A guardian may also be required to file a final account upon the death of the subject individual, when the guardianship is no longer required or if the guardian is removed or resigns.

Failure to qualify as a guardian and submit appropriate reports to the Court can result in the removal of the guardian and, in some instances, sanctions can be imposed. Property management guardians must account for all monies and property received as well as for each expense paid on behalf of the individual.

Legal guardianship ny

Modifying a Guardianship

Have you been appointed as a guardian, or are you or a loved one the subject of an existing guardianship? Often times, especially with an Article 81 Guardianship, circumstances may change requiring modification of certain aspects of the guardianship. A court order is typically required to modify a guardianship, as a guardian is limited to making only those decisions for the individual that were specifically authorized in the original court order appointing the guardian.

These changes may include termination of the guardianship, removal of a guardian, the appointment of a successor, standby or co-guardian, approval to relocate the subject individual, appoint counsel to assist the guardian, approval to sell or purchase real property, reduction or elimination of the bond, approval to engage in Medicaid or estate planning, or to grant any additional authority that was not specifically authorized by the Court.

We Can Help.

Contact us today by calling our office at (718) 418-5000 or click the “book a consultation” box below to schedule a time.