What is Guardianship?
Guardianship is a legal arrangement where a court gives an individual the legal right to make decisions for another person who is otherwise unable to make decisions for themselves (i.e. a child, an incapacitated adult or someone who is developmentally disabled).
In New York State, guardianship cases are handled in Family Court, Supreme Court or Surrogate’s Court depending on the type of guardianship you are seeking.
Guardian – the Guardian is the person appointed by the court who has the legal right to make the decisions for antoher person. Any person over the age of 18 years old and a legal resident or citizen of the US can apply.
Ward – the Ward is the person the Guardian makes decisions for (sometimes called the Guardianee.)
Types of Guardianship
A guardian can have guardianship over different aspects of a ward's life:
Guardian of the person. A guardian of the person can make life decisions for the ward like health care, education and welfare decisions.
Guardian of the property. A guardian of the property handles decisions about the ward's money, investments and savings as directed by a Judge. A guardian of the property must file an annual report about the property.
Guardian of the person and property. This kind of guardian has responsibility of both the ward's life decision and the ward's property.
Guardian ad litem. A guardian ad litem is assigned by a Judge to act for a person during a court case when they cannot defend their rights or protect their own interests.
Each situation is different as it depends who the Ward is and how much help they require.
Guardianship of a Child
A minor may require a legal guardian if their parent dies, leaves the country or becomes too sick to care for them.
A guardianship can be started by filing a Petition for Appointment of Guardian in the county where the child lives. It can be filed in either Family Court or Surrogate’s Court. However, if a child needs a guardian of the property then the petition must be filed in Surrogate’s Court. The Judge would appoint someone to be a Guardian with a Court Order called “Letters of Guardianship” --- this details the type of guardianship.
Before a legal guardian can be appointed for a child, both parents and any child who is over 14 and is not mentally, physically or developmentally disabled, must give consent. In some circumstances, the Judge will appoint a guardian even if the parent or child disagrees.
Guardianship for an intellectually or developmentally disabled adult
In NYS, once a person reaches the age of 18 they are assumed to be legally competent and able to make their own decisions. In the case of an adult with developmental or intellectual disabilities who is unable to make decisions on their own, an Article 17-A Guardianship Petition is best suited. This type of guardianship is filed in Surrogate’s court and can be a guardianship of the person, the property, or both. Certifications from two doctors are required (or one doctor and one psychologist.)
Guardianship for an adult who becomes incapacitated
This refers to an adult who was once able to make their decisions but became incapacitated as a result of an injury or illness. An Article 81 Guardianship would be appropriate for this. This type of guardianship is filed in Supreme Court and is very specific regarding the decisions the guardian has the authority to make and what rights are reserved for the disabled person. A Judge would appoint a court evaluator who will meet with the individual and investigate and report whether or not the guardian should be appointed and if so, what powers they should hold. A hearing will always be held. It is best to consult with an Attorney to assess your situation and file your petition.