Article 81 Guardianship—also known as Guardianship of An Incapacitated Person—is one of two types of guardianships available in New York. As the title suggests, Article 81 specifically affects individuals who cannot manage their own affairs or make decisions for themselves. Because these cases involve those deemed as “incapacitated,” a judge must determine whether the person requires a legal guardian and what powers that guardian would have to act the individual’s behalf. After an Article 81 proceeding, the Court may appoint a guardian of the person, guardian of the property or both.
Filing an Article 81 Guardianship petition is complex and requires a thorough understanding of New York requirements and law. When navigating the legal process, having a knowledgeable and experienced lawyer by your side is highly beneficial and ensures there are no legal inaccuracies, unnecessary delays or problems. Our Fratello Law Article 81 Guardianship attorneys understand the challenges you face and will do everything in our power to relieve as much stress from your shoulders as possible as we help navigate the Article 81 process.
The Responsibilities of a Guardian Under Article 81
Acting as a guardian to an incapacitated individual can be a heavy weight to bear. To ensure the safety and well-being of the incapacitated individual, New York law specifies certain legal responsibilities a person must perform as a legal guardian. At the core of their duties, a guardian must always act with the least restrictive means for the benefit the individual, often referred to as the ward. However, a judge will provide a court order which appoints a guardian and specifies their powers.
Some examples of responsibilities guardians may perform include:
A guardian may also need to secure and file certain documents to ensure the validity of the care they provide. One of these documents is called a “Commission” and outlines the powers granted to a guardian. After a judge issues the Commission, the guardian has 90 days to file an Initial Report. A guardian of the property is also required to file an Annual accounting with the Court for financial matters.
It is important to note that the guardian does not have the power to perform actions not listed in the court order, and they do not have the authority to force the person under guardianship to comply with certain medications and health care. Speak with your attorney to further understand the requirements of Article 81 Guardianship.
Any individual concerned for another person’s welfare may file an Article 81 Guardianship petition. However, only those 18 years or older and found able by a court may be appointed as a guardian. In cases where there is no one else to act, the Court may designate a court-appointed Guardian to serve on behalf of the individual.
Once an individual files a petition explaining the circumstances, limitations and need for appointment of a guardian, a judge will evaluate the situation and any information before deciding whether a guardian is necessary and who to appoint. The Court will also appoint an independent evaluator and attorney to investigate the circumstances and protect the interests of the alleged incapacitated person and report back to the Court. If the judge deems a guardian necessary and the Petitioner fit to carry out the duties as Guardian, the Guardian will be required to complete training, file essential documentation with the Court and begin fulfilling their duties under the Letters of Guardianship awarded.
It is always better to plan ahead with a proper estate plan. To avoid the time and expense associated with an Article 81 Guardianship matter, a property drafted and executed Power of Attorney and Health Care Proxy can designate the Agent(s) to fulfill the financial and health care decision making duties similar to those a Guardian would be assigned. Unfortunately, you cannot know when a sudden accident or illness will leave you incapacitated. If you are looking to prepare and plan ahead to ensure your rights and wishes are respected, an estate planning attorney will help you develop the plan that is right for you. If you have a loved one who has suffered an incapacity and has not completed their essential advance directives, a guardianship attorney can help you navigate the complexities of the Article 81 process.
While working with an attorney for an Article 81 Guardianship petition is not required, there are many reasons for hiring an experienced legal professional to assist you through the process. There are many steps to establishing an Article 81 Guardianship and being appointed a guardian, starting with filing a petition with the Court, preparing for and attending a hearing before a judge and fulfilling the requirements of a court appointment. Whether you are in the process of becoming a guardian or are already acting as a guardian, a lawyer will have inside knowledge about your rights, responsibilities, and how to handle stressful situations.
Filing a petition or fulfilling your duties as a guardian comes with legal complexities many individuals are unfamiliar with and find overwhelming. With a Fratello Law Article 81 Guardianship attorney working on your behalf, you will have in-depth information and compassionate guidance from someone you can rely on and trust. Our team has over 120 years of combined experience supporting clients through their elder law and estate planning needs.
Our small firm has a big heart, and we devote our firm to establishing a solid foundation of reliability and communication with our clients. Schedule a no-cost consultation by calling (631) 406-5580 or filling out our contact form today.
Regardless of your loved one’s situation, our experienced guardianship attorneys in Long Island understand exactly what you are going through and will be right by your side through the entire guardianship planning process. We have more than 120 years of combined experience supporting those seeking guardians and will use those years of experience to ensure your wishes, all the while ensuring your loved one’s best interest, are upheld. This is part of what makes us one of the most trusted guardianship planning firms in the Long Island area.
We are one of the select firms on Long Island with attorneys on staff who focus solely on guardianship planning. But more importantly, we treat our clients like people. We are respectful and take the time to understand your unique needs and concerns. Our dedicated guardianship lawyers in Long Island work efficiently and diligently to make sure you have a plan that works for you and your loved ones. This means more support for your loved ones and less stress during your time of need. Ultimately, our goal is to build a lasting relationship with every client we work with. Schedule a free consultation with us to get started with your case.
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.
