How Guardianship Works in New York for Children & Families

Updated

The general concept of guardianship, a person having authority to care for another person, is not new. It didn’t only appear as part of social welfare, civil rights, and disability rights legislation in recent years. Believe it or not, you can trace guardianship back to ancient Rome. Even then, there were then legal proceedings to protect the property of people considered incompetent.

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Guardianship then continued under English common law. Today, in the United States, guardianship law is a function of state law.  Every state has a system for how it deals with guardianship situations. Because each state makes its own rules, it can be confusing to understand what to expect. 

This article discusses how guardianship works in New York for children and families. If you’re a resident of New York, keep reading to learn more about this process.  

What Types of Guardianship Exist in New York?

As you might expect, there are many different types of guardianship in New York. Three of the principal types of guardianship in New York vary based on the nature of the person who is the subject of the guardianship.

Guardianships in New York can be established for a minor child (known in New York law as an “infant”) under the New York Surrogate’s Court Procedure Act. Guardianships in New York can also be established for a person who is “incapacitated” by the states definition. 

The determination of incapacity is based on clear and convincing evidence that a person is likely to suffer harm because they can’t provide for personal needs and/or property management, and the person cannot adequately understand and appreciate the nature and consequences of such inability.  

Similarly, guardianships in New York can be established for a person who is “intellectually disabled” or “developmentally disabled.” According to the state’s definitions, this means:

  • Intellectual disability: Certified by one licensed physician and one licensed psychologist or by two licensed physicians as being incapable to manage him or herself and/or his or her affairs by reason of intellectual disability. Additionally, that condition is permanent in nature or likely to continue indefinitely. 
  • Developmental disability: Certified by one licensed physician and one licensed psychologist or by two licensed physicians as having an impaired ability to understand and appreciate the nature and consequences of decisions because of a developmental disability. This could be attributed to cerebral palsy, epilepsy, neurological impairment, autism, traumatic head injury, or something similar.

Who Are the Default Guardians in New York?

With that in mind, what are the default guardians in New York state? A parent can appoint a default guardian for a minor child under the parent’s will

However, the appointment of this default guardian is not effective unless the will has been duly admitted to probate and a judge issues a court order, known as letters of guardianship, approving the default guardian as guardian of the minor child.

What Forms Do You Need to File for Guardianship in New York?

The key form to file for guardianship in New York is “Petition for Appointment of Guardian” (“Petition”). You can get this at your local courthouse or online. The NY State Unified Court System website is a great resource for all types of forms, including guardianship. 

If you’re working with an attorney in your state, you can also file for guardianship with his or her help. Your attorney will guide you through the proper forms and petitions for your situation. 

How Do You File for Guardianship in New York?

To file for guardianship of a minor child in New York, the Petition may be made by any person on behalf of the minor child. If the child is over the age of 14, he or she can appoint a guardian for him or herself. 

To file for guardianship of an incapacitated person in New York, the petition may be made by:

  • The person alleged to be incapacitated
  • A presumptive distributee of the person alleged to be incapacitated
  • An executor or administrator of an estate when the alleged incapacitated person is or may be the beneficiary of such estate
  • A trustee of a trust when the alleged incapacitated person is or may be the grantor or a beneficiary of such trust
  • The person with whom the person alleged to be incapacitated resides
  • A person otherwise concerned with the welfare of the person alleged to be incapacitated (including a corporation, or a public agency, including the department of social services in the county where the person alleged to be incapacitated resides regardless of whether the person alleged to be incapacitated is a recipient of public assistance)
  • The chief executive officer, or the designee of the chief executive officer, of a facility in which the person alleged to be incapacitated is a patient or resident

To file for guardianship of a person who is intellectually disabled or developmentally disabled in New York, the Petition may be made by:

  • A parent
  • Any interested person age 18 or older on behalf of the person who is intellectually disabled or developmentally disabled
  • The person who is intellectually disabled or developmentally disabled (if over age 18)

In each case, after a hearing on the petition, the judge issues letters of guardianship, appointing someone as guardian.

How Do You Assign a Guardian in New York?

While you can designate default guardians for a minor child in a parent’s will and nominate guardians in a petition, the ultimate assignment of a guardian in New York is made by a judge. Guardianship is a judicial process, involving litigation.

Many are surprised to learn that guardianship is always done through the court. This is to ensure the safety and wellness of the child or individual. 

How Guardianship Works for Minor Children

There are two key types of guardianship for minor children in New York: guardian of the person and guardian of the property. Below, we’ll discuss each type in greater detail. 

Guardian of the person

A guardian of the person is generally responsible for the personal care of the minor child. The guardian of the person has the same power as a parent to make personal care decisions for the minor child. The petition for guardianship of the person can be filed in Surrogate’s Court or Family Court. This is what most people have in mind when they refer to guardianship. 

Guardian of the property

Alternatively, a guardian of the property is generally responsible for the property of the minor child. The petition for guardianship of the property generally should be filed in Surrogate’s Court.

How Guardianship Works for Incapacitated Persons

Similar to guardianship for minors, there are two key types of guardianship for incapacitated persons in New York: guardian for “personal needs” and guardian for “property management”. 

Guardian for personal needs

Personal needs mean needs such as, but not limited to, food, clothing, shelter, health care, and safety. The powers of the guardian for personal needs of the incapacitated person can include the power to:

  • Determine who provides personal care or assistance
  • Make decisions regarding social environment and other social aspects of the life of the incapacitated person
  • Determine whether the incapacitated person should travel
  • Determine whether the incapacitated person should possess a license to drive
  • Authorize access to or release of confidential records
  • Make decisions regarding education
  • Apply for government and private benefits
  • For decisions in hospitals, act as the patient’s surrogate, and in all other circumstances, generally consent to or refuse generally accepted routine or major medical or dental treatment
  • Choose the place of residence

Guardian for property management

Property management means taking actions to obtain, administer, protect, and dispose of real and personal property, intangible property, business property, benefits, income, and to deal with financial affairs. The powers of the guardian for property management of the incapacitated person can include the power to:

  • Make gifts
  • Provide support for persons dependent upon the incapacitated person for support, whether or not the incapacitated person is legally obligated to provide that support
  • Convey or release contingent and expectant interests in property, including marital property rights and any right of survivorship incidental to joint tenancy or tenancy by the entirety
  • Exercise or release powers held by the incapacitated person as trustee, personal representative, guardian for minor, guardian, or donee of a power of appointment
  • Enter into contracts
  • Generally create revocable or irrevocable trusts of property of the estate
  • Exercise options of the incapacitated person to purchase securities or other property;
  • Authorize access to or release of confidential records
  • Apply for government and private benefits
  • Pay the funeral expenses of the incapacitated person
  • Pay such bills as may be reasonably necessary to maintain the incapacitated person
  • Generally invest funds of the incapacitated person

The petition for guardianship of an incapacitated person can be filed in New York Supreme Court or County Court.

How Guardianship Works for Persons Who Are Intellectually Disabled or Developmentally Disabled

When it appears to the satisfaction of the court that a person who is intellectually disabled or developmentally disabled is age 18 or older and is wholly or substantially self-supporting by means of his or her wages or earnings from employment, the court may appoint a limited guardian of the property of such person. 

As a limited guardian, such guardian is only responsible to receive, manage, disburse, and account for property of the person who is intellectually disabled or developmentally disabled other than the wages or earnings of such person. A limited guardian has less authority as a guardian than a full guardian.

The petition for guardianship of an intellectually disabled person or a developmentally disabled person generally should be filed in Surrogate’s Court.

Frequently Asked Questions: Guardianship in New York

The following are a few of the frequently asked questions about guardianship in New York. However, if you have specific questions, it’s helpful to work with an attorney in your state.

How long is temporary guardianship in New York?

A temporary guardian can be appointed in New York by a parent for a minor child for up to six months. A temporary guardian also can be appointed in New York for an incapacitated person without any specific time limit.

What’s the difference between guardianship, conservatorship, and custody in New York?

Under prior New York law, the term conservatorship generally referred to the guardianship of a disabled person’s property. However, the term conservatorship is generally no longer used under New York law.

Custody is less comprehensive than guardianship in New York, as custody generally only relates to the personal care of minor children. When speaking about someone’s legal caregiver, you’ll mostly use the term guardian in New York. 

Can you get guardianship without going to court in New York?

You must go to court to get guardianship in New York. However, there are certain non-judicial actions that you can take to obtain many of the benefits of guardianship in New York.

With a health care proxy, you can appoint someone to make healthcare decisions for you if you are subsequently disabled. With a durable power of attorney, you can appoint someone to make property decisions for you if you are subsequently disabled.

Similarly, with a living trust, you can appoint someone to manage your assets for your benefit if you are subsequently disabled. All of these forms can be filed without needing to go to court yourself. 

Plan for Disability Before Guardianship Becomes Necessary 

Planning before it becomes necessary is a much-needed step, especially when planning for the future possibility of disability or impairment. This benefits you because you can decide what happens after your disability, rather than a court deciding under guardianship.

This also benefits your family because family members do not have to deal with certain of the negative aspects of guardianship: litigation, legal fees, costs, and time delays, uncertain results, and difficult decisions at a burdensome time. All New Yorkers should plan for the issue of disability before a guardianship proceeding becomes necessary for them.


Source:

“SCPA Article 17.” New York Courts: Guardian and Fiduciary Services. Nycourts.gov.

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