New York Guardianship
Many families have a loved one with an intellectual or developmental disability, or a loved one that at some point becomes unable to make his or her own personal and financial decisions. An experienced Littman Krooks attorney can assist you with applying for guardianship for your loved one.
We can determine what type of guardianship is most appropriate. We can file the guardianship petition, explain the duties of the guardian, and assist the guardian with annual accountings required by the court. We can also assist with representing a guardian’s interests in court and other related matters, including filing a petition to expand the guardian’s powers, or protecting assets so that the individual needing a guardian can maintain eligibility for government benefits.
Does Everyone Need a Guardian?
Some people who might otherwise need a guardian can be served in a less restrictive way, including:
- Advance medical directives or health-care proxies
- Personal caregivers
- Powers of attorney
- Representative payees
A Littman Krooks attorney can help you determine how best to help your loved one manage their personal finances and affairs.
What is a Guardian?
A guardian is typically a family member or a close friend appointed by the court to make decisions for a loved one regarding health care, personal affairs and financial matters. A guardian may collect and invest the assets of the person requiring a guardianship, and assist the individual with paying bills, living arrangements and medical treatment.
Becoming a guardian is a serious responsibility. Typically, guardians are responsible for such tasks as:
- Managing assets, debts and making other financial decisions
- Consulting with the individual in need of a guardian on medical decisions (or making them outright)
- Managing daily routines and living arrangements including assisting the individual with participation in community life
- Assisting with public benefits advocacy
- Ensuring an appropriate education for a child in school
- Drafting of a letter of intent if the person in need of a guardian is a child with special needs, which includes preferences, health needs and daily habits
What is the Process?
Guardianship of a Child with Special Needs:
As your child approaches the age of 18, you should consider whether your child requires the appointment of a guardian. In New York State, regardless of the severity of your child’s disability, at the age of 18 your child is legally considered a competent adult and capable of making educational, financial and other decisions independently. If your child is unable to make decisions independently due to a developmental disability a guardian must be appointed by the Surrogate’s Court. Parents should consider not only applying for guardianship for themselves, but nominating a successor guardian in the event that they can no longer care for their child. For parents with more than one child, clarifying the issue of guardianship as soon as possible ensures that everyone is on the same page when it comes to caring for a sibling with special needs.
The guardianship process typically proceeds under New York Surrogate’s Court Procedure Act 17-A. The process involves certifying the disability of the person in question, as well as submitting Doctor’s affirmations in support of said disability. The Petition must also include why the person is unable to manage his or her own affairs. A hearing is held after the application is submitted before a judge.
A guardianship for a child with special needs is usually indefinite. However, if a situation changes, one can always petition the court to modify or terminate a guardianship.
Guardianship should be considered part of transition planning, which should begin at your child’s IEP meeting when they turn 15. The process of establishing a guardianship, if necessary, should be well underway by the age of 17. Our team of highly trained attorneys can assist you and your family during the transition process.
Guardianship of an Alleged Incapacitated Person:
If your adult loved one does not have the appropriate documents in place, and thus requires financial or medical decision need to be made on his/her behalf, a guardian must be appointed by the Supreme Court to make such decisions. This is typically commenced for an adult under Article 81 of the Mental Hygiene Law. The Court will grant authority to the guardian that is appropriate to satisfy the needs of the alleged incapacitated person, either personal or financial, while at the same time tailored and limited to only those activities for which a person needs assistance.
An experienced guardianship attorney at Littman Krooks can assist you in drafting and filing a petition for guardianship. Once a petition is filed, the court then grants a hearing to determine if the alleged incapacitated person is incompetent and to decide who will serve as a guardian. During the hearing, a judge usually listens to testimony on whether or not an individual can sufficiently manage their own financial and property management needs, as well as medical and personal needs. Our experienced attorneys will guide you through the trial process from start to finish.
At Littman Krooks, we can also advise you if you had a guardian appointed for you. We can explain your rights and the duties of the guardian, and file the appropriate documents to ensure that the authority of the guardian is no more intrusive than necessary. We can also assist in ensuring that you may participate as fully as possible in the decision-making process. If you do not want a guardian, we can also prepare and file documents necessary to challenge a petition for guardianship.
Contact an experienced and qualified New York guardianship attorney at Littman Krooks today to schedule a consultation.