Adult Legal Guardianship: What is it?
In New York, an adult legal guardian is established through the courts when a person over the age of 18 is incapable of making or expressing responsible choices or managing his or her affairs. Legal guardianship over an adult is a far more formal relationship than power of attorney.
A legal guardian is an individual or entity appointed by the court to care for an individual who is an "Incompetent Person." A person may need someone to manage his or her personal and property affairs for a number of reasons . A legal guardian may be appropriate for persons who suffer from: An adult legal guardian may also be in place for persons with a diagnosis of dementia or who are severely injured or disabled. The list is intended to be inclusive, but not exhaustive. An adult legal guardian is obtained through a legal proceeding in a Court called Guardianship Court. Guardianship Court proceedings are commenced by filing a Petition to adjudicate a person to be Incompetent. In the Staten Island Guardianship Court, an adult Incompetent Person receives a Court Appointed Independent Lawyer from the Bar Association of Staten Island.
Steps to File for Guardianship in NY
In New York State, a guardianship petition must be filed with the Surrogate’s Court in the county where the alleged incapacitated person resides, or if s/he is a non-New York resident, then the petition is to be filed where the alleged incapacitated person owns real property. The petition must be accompanied by a verified medical certificate from a doctor for each alleged incapacitated person. This must be a licensed physician, psychologist, podiatrist or nurse practitioner who has examined the person within 30 days of the petition filing, and has determined that the individual is incapacitated.
The guardian must also file a Power of Attorney / Healthcare Proxy for the alleged incapacitated person, if they have one. A citation must be issued and served or appear to have been waived. The citation tells the alleged incapacitated person that the proceeding is happening, and is a method of ensuring that they have notice of the proceeding, which allows them the opportunity to appear and contest the petition.
If the person objects to the guardianship, the Surrogate’s Court will set the matter down for a hearing. If the person does not object, the court will set the matter down for a hearing if:
After the hearing, or there not being any objections to the guardianship proceeding, the Surrogate’s Court will issue an appropriate order appointing the guardian.
Who can be appointed as a Guardian?
To become a legal guardian in New York State, candidates must demonstrate to the court that they are legally eligible to serve in this capacity. While many adults will be legally eligible, certain factors may disqualify a candidacy. Legal eligibility requirements include:
● Age – A candidate must be at least 18 years of age to be a guardian
● Citizenship – While US citizenship is not a requirement to serve as a guardian, the candidate must have legally immigrated to the US and have legal residency status under the law
● Mental Capacity – A guardian must be an adult who can make responsible decisions for the well-being of another adult. An individual with a history of mental incapacities or recent psychiatric issues may be disqualified by the court
● Criminal Background – A candidate who has been convicted of a felony or misdemeanor for which they served a term in prison may not be eligible to act as a guardian. Administrative crimes involving fraud or similar convictions in other jurisdictions may also disqualify a candidate.
● Financial Stability – Individuals whose financial stability may be in question are generally not eligible to serve as a legal guardian. Those with a history of bankruptcy in the past five years may be disqualified.
In order to determine the eligibility of candidates for guardianship, informal conference hearings are held before a referee in the surrogate’s court.
The Duties of Guardians
Responsibilities of a Legal Guardian for an Adult in New York State
A guardian’s duties and responsibilities will be commensurate with the powers bestowed by the court. A guardian of the property under Article 81 of the Mental Hygiene Law will have all the powers of a guardian of a person under SCPA Article 17 and 17A only to the extent permitted by the court. A guardian of a person has the following powers and duties: Legal guardians have a fiduciary obligation to care for their protectees’ property, manage it wisely, and not be negligent. Courts supervise guardians and scrutinize their conduct and render the guardian’s inventory, accountings as well as actions. A guardian is obligated to keep his or her own funds and the funds of the protected person separate, such as through the use of a restricted account. A guardian must also be aware of the duties as a fiduciary and the consequences for breaches of those responsibilities. Breaches can lead to removal as well as personal liability. Courts can order a guardian to furnish a bond prior to granting letters. For adults under Article 17A, guardianship terminates at the death of the ward and is not affected by dissolution.
What Rights remain with a “Wards” Incapacitated Adult?
The person under guardianship retains all rights, including fundamental rights. Rights retained by the adults are as follows:
• To voice and express his/her opinions if able to do so;
• To marry and maintain control over his/her spouse;
• To have visits and personal correspondence with clergy, attorney, medical care providers and friends and family;
• To possess the necessary personal belongings;
• To run his/her own business or trade;
• To make a Will upon reaching the age of majority;
• To have the opportunity to review files that contain private or confidential information about himself/herself, unless there is a clear demonstrated danger to an individuals personal safety or the health and safety of others, which would be caused by such a review . The adult under guardianship can bring a petition in Non-Emergency Guardianship matters before the Suffolk County Supreme Court for a review of the actions taken by their guardians.
Alternatives to Legal Guardianship
In certain circumstances, guardianship may not be the most appropriate remedy for an adult in need of assistance. Alternatives to guardianship include durable powers of attorney and health care proxies. A power of attorney is a document signed by the principal in which he – either expressly or implicitly – gives someone else the authority to act on his behalf in limited areas. Durable powers of attorney grant the agent broader powers of representation. Notably, these powers are not subject to review of the court and do not stick to the rigor of a periodic annual accounting. A power of attorney is different from guardianship in that the principal remains competent to act on his own behalf.
The difference between a power of attorney and a health care proxy is the area of representation. A health care proxy allows the agent to make health care decisions for the principal in the event the principal lacks the capacity to make his own. Interestingly, a health care agent can make medical decisions for an individual even if family members or friends disagree with the choice of treatment, unless these persons go to court to challenge the decision.
Individuals with temporary incapacity may also benefit from having a representative payee appointed, rather than seeking guardianship. Representative payee programs allow for appointment of individuals or organizations to receive the benefit payments on behalf of a person with a disability. These programs include Social Security (Social Security Administration), Veterans Benefits (Department of Veterans Affairs), and VA Fiduciary and Agent Program (Department of Veterans Affairs).
Changing or Ending Guardianship
The court has the ability to modify or terminate the guardianship if there has been a change in circumstances, use of funds, or the decision making ability of the ward. Surrogate’s Court Procedure Act Section 46-A.
A common ground for a modification is when the initial reason that the guardian was put in place has come to an end. SI76-B , The Personal Needs Guardianship (for reasons other than Marital Dissolution), (c)(1).
The new petition will go before the judge and the judge will make a determination as to whether the modification will be made based on the current circumstances.