A guardianship may not only be a useful tool in many situations, but for some it may be the only option. A guardianship is an arrangement where the court appoints a person to make various decisions for another individual. The types of decisions the guardian may make, as well as the extent of the power to make those decisions, depends on the type of guardianship and the abilities of the individual over whom the guardianship is sought (this individual is referred to as the “ward”).
A guardian can be in charge of the decisions regarding the ward’s person, property, or both, depending on the type of guardianship and the reason it is needed. In New York there are three types of guardianships: Article 17, Article 17A and Article 81.
Article 17 guardianships are necessary either when a minor inherits more than $10,000.00 or when a minor’s parents are no longer able to care for the child. This proceeding is brought in Surrogate’s Court or in Family Court, depending on the details of the case.
Article 17A guardianships are used to appoint a guardian for an adult individual who is intellectually or developmentally disabled prior to obtaining the age of 21. This proceeding requires that specified professionals provide certifications to the court as evidence that the ward has a diagnosed disability and is unable to manage his or her affairs due to that disability. The Court has very strict reporting requirements regarding the adults who will be residing in the same home as the ward. These types of guardianships are handled in Surrogate’s Court.
Lastly, an Article 81 proceeding is brought when an adult individual is alleged to be incapacitated. Incapacity can be shown through the ward’s inability to care for herself and/or manage her property or finances, thus requiring the assistance of a guardian. To determine the necessity of a guardian, the Court will look at the functional limitations of the ward, or the Alleged Incapacitated Person (“AIP”) as they are referred to in Article 81 proceedings. The Supreme Court oversees Article 81 guardianship cases.
When a guardian is appointed over a ward’s person, property, or both, the ward loses all legal ability to make decisions regarding those issues, which is a severe limitation on their rights. As such, the courts are extremely prudent in their appointments and they have many safeguards in place to ensure that the ward has an effective advocate if they are unable to advocate for themselves.
Navigating these guardianship proceedings can be an extremely overwhelming process. There are many intricacies required by the Courts which if not properly addressed, can result in a negative outcome that could be detrimental to an individual who truly needs the assistance of a guardian.
If you need assistance with regard to a potential guardianship proceeding, contact Katz, Smith & Chwat, PC today to set up an appointment.
Posted in: Estate Planning