Under Article 81 of New York’s Mental Hygiene Law, a court is authorized to appoint a guardian to manage personal or financial affairs of an incapacitated person. Not all guardianships will be the same, as they are tailored to the necessities of the incapacitated person known as the ward. Some guardianships will only be granted to provide assistance with one specific need, whereas others will include assistance with many needs. Guardians may be granted the authority to:
- Pay bills
- Withdraw money from the Bank
- Pay for care
- Make medical decisions
- Decide where the ward will live
- Engage in Medicaid planning
- Engage in tax planning
How Do I Become a Guardian?
The first step in becoming a guardian is hiring an attorney to petition the court to appoint a guardian for an incapacitated loved one. Anyone who asks the court to appoint a guardian is known as the petitioner. Once the petition for a guardian has been filed, the court will appoint a court evaluator. The court evaluator’s job is to provide the court with the necessary facts and circumstances of the case and express their opinion of whether a guardian is needed. In certain cases, the court may also appoint a lawyer for the incapacitated person.
Once the petition is filed, a hearing date will be set and there will be orders of notice given to all close family members. At the hearing, it is the petitioner’s job to make sure that there is clear and convincing evidence that a guardian is necessary to manage personal or financial aspects for the incapacitated person. Any family member who filed an opposing petition will be granted time to state their claim. At the end of the hearing, the court will announce whether a guardian will be appointed and who the guardian will be.
Who Can Become a Guardian?
Any suitable adult may become a guardian. Normally a family member, nominee of the incapacitated person and the petitioner are all given preference. If family members cannot come to an agreement as to who the guardian should be, or no family member or friend is willing to serve as guardian, the court may appoint an independent guardian whose name will be chosen from a list maintained by the court. A guardianship could be indefinite and last throughout the entirety of the ward’s life or could be for a limited duration.
What Are My Responsibilities as Guardian?
A person who is chosen by the court as guardian must participate in a six-hour course where the duties will be explained. The guardian’s next responsibility is to file an initial report within 90 days of appointment as guardian. After that, the guardian will file an annual report with the court by May 31 of each year that explains in detail all financial expenditures throughout the year. Finally, at the termination of the guardianship, the guardian must file a final report which summarizes all financial activity and care to the ward the guardian engaged in for the entire length of the guardianship. It is also necessary for the guardian to visit the ward at least four times per year.
The guardian may also be responsible for, but not limited to, any of the following:
- Responsibility for the ward’s assets
- Making decisions that benefit the ward financially
- Make informed decisions regarding the health of the ward
- Ensure that necessary services are provided to the ward in a timely manner
What if I Am Not Being a Sufficient Guardian?
Guardianship rights can be revoked. If a ward, family member, or friend feels that the guardian is no longer fulfilling their duties, a motion can be filed in court to revoke the guardian and appoint a new guardian. The court will investigate the complaint. Based on the investigation, the court will decide whether your guardianship rights should be revoked. Some problems can be resolved so that you do not lose guardianship. Other problems, such as malfeasance, abuse or neglect, will result in immediate removal and the possibility of criminal prosecution.
If you feel that a loved one has become incapacitated and you wish to help, it is important that you contact an attorney today. The attorneys at Hobson-Williams, P.C. are here to assist you with all aspects of guardianships. Call our office at (718) 210-4722 to schedule your consultation today.