New York guardianship becomes necessary when someone has become incapacitated and cannot act on his or her own behalf. Guardianship is also needed if there is a minor under the age of 18 who cannot legally make decisions or act on his own behalf and whose parents are unable to fulfill the role as guardian. Determining when a guardian is needed, who should serve as guardian and what is involved in guardianship proceedings can be complicated, so it is important to be informed of how the law works.
Mark S. Eghrari & Associates PLLC can provide you with the help that you need to ensure your family doesn’t have to go through guardianship proceedings if something happens to you. Advanced planning can be preferable to New York guardianship proceedings in case of incapacity, as you can make certain that you have chosen the right person to make your decisions who can take over right away when you cannot act of your own accord.
However, if incapacity has already happened and no advanced plans are made, we can also provide help to families during the guardianship process. Give us a call at (631) 265-0599 or contact us online to to find out more about the ways in which we can help.
New York Guardianship Law: Who Becomes a Guardian?
The Guide to Adult Guardianship published by the New York State Office of Children and Family Services provides information on guardianship proceedings and on how it is determined who will become a guardian under NY law.
According to the Guide, Article 81 of the Mental Hygiene Law has been controlling on guardianship proceedings in New York since April 1, 1993. The law provides information on obtaining guardianship over an adult who is incapacitated. Proceedings for an adult are different than proceedings for naming a guardian for a minor.
While children always need guardians, adults don’t unless they cannot manage their own affairs. Under section 81.02, a court appoints a guardian if it determines appointing one is necessary to provide for the personal needs of the incapacitated person or to manage the incapacitated person’s property and financial affairs.
A petition for guardianship has to be filed by someone with the authority to ask that a guardian be appointed. This could be the allegedly incapacitated person himself; a person who would be entitled to a share of the allegedly incapacitated person’s estate; or a trustee of a trust if the allegedly incapacitated person is a trust creator or beneficiary. It could also be someone who the allegedly incapacitated person lives with; the CEO of a facility that the allegedly incapacitated person is a patient in; or a person who is “otherwise concerned with the welfare of the incapacitated person.” Public agencies, including the Department of Social Service, could petition for guardianship proceedings.
Once a petition for guardianship is filed, a hearing is held. It is determined if the allegedly incapacitated person actually is incapacitated and needs a guardian. The court will then decide whether to appoint a temporary or a permanent guardian. A guardian can be anyone who is 18 years of age or older. It can also be a corporation, a public agency, or a local department of social services.
The appointed guardian has to participate in court-approved training that explains the legal duties and legal responsibilities of the guardian. The guardian has to comply with obligations, including allowing the person with incapacity the greatest amount of autonomy possible, as well as preserving and protecting the incapacitated person’s property and health.
Getting Legal Help with New York Guardianship
Whenever possible, you should try to avoid New York guardianship with advanced planning so you and your family members won’t have to deal with a court proceeding in case of incapacity. Ongoing court oversight, which is necessary when a guardian is appointed, can also be intrusive and undesirable. Solutions like a power of attorney could be a better, easier, and more private option for families to deal with incapacity.
If someone you love is incapacitated, however, you need to move forward with guardianship proceedings if no incapacity plans are in place. Mark S. Eghrari & Associates PLLC can provide you with help understanding how guardianship works and going through the process of having a guardian appointed. Give us a call at (631) 265-0599 or contact us online to find out more about the ways in which we can offer assistance with all aspects of incapacity planning and guardianship proceedings.
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