What is Guardianship? Guardianship gives another person legal authority to make health care decisions, financial decisions, and property management decisions for people who are unable to make those decisions for themselves under guardianship proceeding. Note: This person must be categorized as an incapacitated person (IP). With almost twenty years of experience as New York Guardianship Attorneys, the Law Offices of Inna Fershteyn, P.C. will help you if you are in need of legal assistance with your guardianship case or you need representation. Located in Brooklyn, we serve communities nearby, in Manhattan and the entire New York city area. To schedule an appointment at our firm call (718) 333-2394 or contact us today.
What is Child Guardianship?
In some instances, children under the age of 18 may be required to live with a legal guardian that is not their parent. Anybody who assumes legal guardianship of a minor has the responsibility of a legal parent. They must provide the child with food, housing, clothing, education, medical care, and any other basic needs. Guardianship of minors pertains to a legal relationship between a child under the age of 18 and an adult guardian. A guardianship doesn’t negate the legal relationship that exists between a child and their biological parents; instead, it co-exists with the relationship of the legal guardian.
Although most times the guardian has the role that a parent would regularly have, there are situations where a child has certain medical needs or financial assets, and as a result, the child’s parent may obtain guardianship over the child or the child’s estate. Someone who is appointed guardian over a child’s estate will manage the child’s finances and is responsible for keeping the fund safe and available until the child reaches adult age.
Guardianships can terminate according to the terms set in the guardianship agreement or automatically when certain events occur. Most of the time, an expiry date is not set. Generally though, guardianships last until one of the following:
- the guardian declares resignation
- the child reaches adult age (most of the time 18)
- the child or guardian passes away
- the child’s assets have been depleted.
- A judge deems that guardianship no longer necessary, or
- A judge determines that the guardianship no longer serves the child’s best interests
What is Adult Guardianship?
Adult Guardianship is a legal procedure where a court decides that an individual is not able to make their own decisions due to severe disabilities and that the person is in need of protection. The person may be unable to competently make decisions about medical treatments or obtain livable circumstances including appropriate food and shelter. This condition is known as a “disability.” If the court believes that a disability is hindering a person’s ability to make decisions, it will appoint someone on behalf of the disabled person. This appointee will be responsible for making decisions on behalf of the disabled individual.
What is an Incapacitated Person (IP)?
An incapacitated person is an individual who the court has deemed to lack the ability to manage some or all of their essential health and safety requirements. This individual may not have the ability to make or communicate responsible personal decisions.
What We Can Our NYC Guardianship Attorneys Do For You:
- Assist with filing a petition to appoint a guardian
- Help gather necessary documents that show that the person needing assistance is an incapacitated person.
- Give the approved guardian consent to pay bills and prevent self-neglect of the incapacitated person.
The Process of Obtaining Guardianship
There are several steps to have a legal guardian appointed for someone who is incompetent or incapacitated. Here are the steps:
Step 1: The first step in appointing a guardian involves obtaining a letter or report certifying the legal disability of the ward; the objective here is to explain what the need is for a guardian.
Step 2: After this letter is obtained, the second step is that you must then file a petition with the court. Summons are served to the ward, or a person that is under the protection of a guardian.
Step 3: Then, a hearing is held where evidence is presented to show that the ward is either disabled or is improperly being taken care of if they are a minor. An attorney will normally be present. The evidence during the hearing must prove that guardianship is necessary. The hearing also decides the entity that will act as guardian as well as what the authority of the guardian will be. This process can take between two weeks to two months to complete.
Although this process could be lengthy, states like New York have policies allowing a guardian to be appointed in extenuating circumstances. In these cases, the appointment is made after a hearing about the issue at hand as well as the nature of the guardian’s role, which for the most part only takes a few days.
A guardianship can last forever unless modified, revoked or terminated. The courts are allowed to do this if evidence becomes available of the ward’s competence and ability to make decisions.
The Different Types of Guardianships in New York
Guardian of Property
Besides having guardianship of a person, it is also possible to have guardianship of a property, which means the guardian has the power to manage a child’s property until they become the legal age of 18 to manage it on their own. A child’s property may consist of money that may have been left to their name. Most times, the guardian who is chosen to manage the child’s property is also appointed as the child’s guardian as well.
Guardian ad litem
Another type of guardianship that exists is Guardian at litem (GAL). This is when a person is appointed by a judge to help represent a person that is not able to be present at court. This guardian is responsible for protecting the rights and interests of that person during a single court case. A GAL can be appointed in cases involving mostly children or incapacitated persons. GAL’s are only responsible for helping a person resolve their court case.
Frequently Asked Questions about Guardianship
How does a legal guardianship differ from an adoption?
A guardianship is simply a legal relationship between a child and an adult who is not the biological parent of the child. It allows the guardian of the child to legally take care of the child as well as make decisions regarding the child’s life. An adoption on the other hand, is more permanent. In an adoption, the rights and obligations of the parent is cancelled, and the adoptive parents substitute their place. The adoptive parent becomes not just a guardian but the child’s actual parent under the law. This also means that the adoptive parent has full responsibility for the child’s health, there is also a set obligation to financially support the child. An establishment of the inheritance rights between an adoptive parent and the child are also set. The biological parents of the child have no parental obligations for the child at this point.
What are some reasons why I should become a guardian?
There are many reasons you should consider becoming a guardian. The first is if a child’s parents are deceased. If both parents of a minor child pass away, and there was no plan set for the guardianship of the child. In a situation like this, the court would have a list of people who have priority to be appointed a guardianship. The second reason you should consider becoming a guardian is if a parent has become mentally incompetent. If there is no power of attorney before a person becomes incompetent, a guardianship is the only option that is available.
How to give guardianship to a family member?
If a parent wants to give a family member guardianship, the parent must file a petition in family or surrogates court to declare a family member as a temporary guardian of the child.
What are some reasons I may not want to become a guardian?
It’s important to remember that becoming a guardian is a legal responsibility, a guardian will have the same responsibility as a parent including responsibility for the child’s health and damages. You must manage finances and much more. Even with the social security, public assistance and inheritances from a deceased parent may not cover all the expenses.
Can a parent give guardianship?
Parents can voluntarily sign over legal guardianship by signing over permanent guardianship. Though the court prefers to place children with their family.
How to get legal guardianship of a child without going to court?
A person may get legal guardianship of a child without going to court by becoming a standby guardian. The parents of the child must sign a document that is available in probate court, which states that they are consenting a relative to take guardianship of the child.
How do I challenge a guardianship?
If someone has a history of violent behavior, alcohol abuse or drug abuse, then it would be difficult for them to have guardianship. You can also challenge guardianship eligibility on the basis that they are incapable of managing the child or the child’s estate.
How do you terminate guardianship in New York?
Ending a guardianship can be done by filing a petition with the court asking for a discharge or termination. A petition for discharge or termination must be filed.
What is guardianship for the elderly?
Guardianship for the elderly, also known as elderly conservatorship, is a relationship created by the court when they assign a person to take care of an elderly person who is no longer able to take care of him or herself.
How does one approach guardianship for adults who have a mental illness?
The Mental Health Act allows individuals known as guardians to be appointed. The guardians are given legal powers to make decisions for an individual who has a mental illness and is unable to do so on his or her own.
What happens at a guardianship hearing?
At the guardianship hearing, the judge will ask the “guardian to be” different questions that the judge might have, anyone who is challenging a guardianship will also be allowed to tell the judge the reasons they are challenging the guardianship. After the judge has all the information from everyone, the judge may decide immediately whether to allow or deny the guardianship.
- Co-Conservatorship – Are Two Heads Better Than One?
- How an Adult Guardianship, or Conservatorship, Works
- What Happens If A Guardian Can’t Fulfill His Duties
- What is a Guardianship Proceeding?