A guardianship is a legal relationship in which the court provides a person with the legal authority to make certain decisions for someone else who is unable to make those decisions for themselves. The laws surrounding guardianship can sometimes be confusing, and the process is challenging. This is why it’s important to speak with a skilled and experienced guardianship attorney with a clear understanding and background in guardianship law. Whether to petition for or oppose guardianship, it’s essential to have strong legal representation to protect your rights and best interests.
Fratello Law is a family-oriented firm committed to helping our clients address subjects that could be personally and emotionally challenging. Guardianship is one of those subjects that can be challenging to approach, but our team is here to help you and your family tackle this process and ensure that your needs and the needs of your family are met.
Guardianships are legal determinations in which the court appoints a guardian of the person and/or property of a developmentally or intellectually disabled individual (Art. 17A Guardianship) or of an alleged incapacitated person or ward (Art. 81 Guardianship). Among other requirements, a guardian must be over 18 and a legal citizen or resident of the United States. There are numerous circumstances under which a physically or mentally impaired individual may need a guardian.
A guardianship may be necessary if a physically and/or mentally impaired individual:
Often a person needs guardianship because they have a developmental or intellectual disability or do not have the cognitive ability (whether it’s due to age or illness) to make decisions for themselves and cannot give informed consent for personal, medical, or financial matters.
The concept of “incapacitated” isn’t limited to a single situation. Rather, it can occur in many different circumstances. Therefore, the law may sometimes use different definitions or criteria to define incapacitated. Similarly, there is more than one person with the authority to declare a person incapacitated.
For instance, in New York, if someone petitions to become a legal guardian, the New York Mental Hygiene Law (HML) governs the determination of incapacity by establishing that the person will likely suffer harm without guardianship because:
When reaching its determination, the court gives primary consideration to the functional level and functional limitations of the potential ward. Such consideration includes an assessment of that person’s:
There are different types of guardianships that are appointed by the Surrogate’s Court or the Supreme Court.
Article 81 of the Mental Hygiene Law authorizes the court to appoint a guardian where an alleged incapacitated person (AIP) cannot understand and appreciate the nature and consequences of his or her inability to handle personal and/or financial matters and that the alleged incapacitated person is likely to suffer harm if a guardian is not appointed.
When an individual has not or is unable or does not have capacity to execute advance directives and is unable to manage his or her own personal or financial needs, a petition must be filed in in the Guardianship department of the Supreme Court to appoint a Guardianship of the person and/or property. The law requires the court to consider the potential ward’s cognitive ability and function level and restrictions and assess whether the ward is able to handle their own daily living activities.
A guardianship under article 81 is very individualized with protections in place to safeguard the best interests and future needs of the AIP, with limitations on the type of decisions that can be made by the guardian depending on the unique needs and circumstances of the AIP. The judge appoints a neutral and independent court evaluator who provides the court with recommendations after interviewing all interested parties as well as the AIP and investigating the unique circumstances surrounding the AIP and his or her needs. The court may also appoint an independent guardianship attorney to represent the AIP directly. The court holds a hearing for the guardianship where the petitioner can present a clear and convincing case of the ward’s incapacity and the likelihood of suffering harm without an appointment of a guardian.
Purpose of Article 81
Under article 81, there are different guardianship arrangements:
An experienced guardianship attorney can help you guide you through the guardianship process and determine the appropriate scope of guardianship given the specific circumstances of you matter and the needs of the AIP.
An Article 17-A guardianship is a determination by a Surrogate Court judge appointing a guardian to help protect the interests of an intellectually or developmentally disabled adult and make decisions for them, when they are unable to do so for themselves. In New York, when a person turns 18 years old, they are presumed to be legally able to make decisions for themselves. This means that no other person is allowed to make personal, medical, or financial decisions for them. This may present a problem if the person is intellectually or developmentally disabled and has difficulty making decisions for themselves.
The person asking the court to appoint a 17-A guardian (the petitioner) is typically a parent or a close family member.
Article 17-A Process
Obtaining this type of guardianship requires filing a petition with a certification from a doctor, a psychologist, or two doctors. The certification must state that the potential ward is disabled and cannot manage their own affairs. The court has the authority to appoint guardianship of the person, property, or both. These guardianships are typically broad, covering personal and financial matters.
Guardianship is necessary for the benefit of the ward, but it can be a complex process. At Fratello Law, our guardianship lawyers approach each case with the compassion and understanding needed during such a personal and emotional process. We are a small firm with a big heart, committed to our clients as if they were our own family. We look forward to including you in our client family. Contact us at (516) 321-4010 or complete our contact form to schedule a no cost consultation.
An Article 81 guardianship proceeding is typically used to petition the court to appoint a legal guardian, including the elderly and disabled, with cognitive or functional limitations that are likely to cause them financial or personal harm. The goal of Article 81 guardianship is to secure a guardian who will be given the legal power to act on behalf of a person with cognitive limitations to manage their property and personal needs. The attorneys at Fratello Law will use their broad experience to help you apply for and maintain an Article 81 guardianship for your loved one.
In New York, the parents of your disabled loved one are deemed their Parent and Natural Guardian until they turn 18. Once your loved one turns 18, New York State law deems them a competent adult capable of managing their everyday lives on their own. However, this is not always appropriate. Article 17A Guardianship allows you to remain the guardian of your diasbled loved one and care for their physical and financial needs beyond the age of 18. At Fratello, our experienced attorneys will guide you through the process of applying for and maintaining Article 17A Guardianship.
If the court finds it necessary, a guardian is appointed to manage the assets and property of your disabled loved one. If you are appointed by the court as your loved one’s guardian, you are responsible for overseeing and using your loved one’s funds to support their wellbeing. In addition to using the funds, as a guardian you are also responsible for guardianship accounting, which requires you to keep a detailed record of all your loved one’s income and expenses. Our expert attorneys can take the burden of guardianship accounting off of your plate, so you can spend more quality time with your loved one.
Sometimes an appointed guardian can no longer serve as a guardian. A guardian can voluntarily resign because they no longer want to be the guardian and a new guardian can be appointed by the court. If a guardian is no longer capable or suited to be the guardian, you can petition the court for the removal of the unsuitable guardian. Our attorneys have extensive experience helping people like you and their loved ones exercise all three of these options to serve the best interests of their loved ones.