Legal Guardianship

Who May Be Appointed Guardian Ad Litem

Under New York Law, a guardian is a person who has the authority to take care of your minor children if you are unable to as a result of a mental incapacity, illness, disability or you pass away. The legal guardian has the same authority and powers as a parent to make decisions regarding a child’s education, medical care, financial matters and the general welfare of a child. The guardian has no claim to the child’s property or money. The child’s relationship with the parent still remains the same. The guardian is really a substitute for a parent.

A legal guardian must be 18 years of age or older, a legal resident or a citizen of the United States. Typically a guardian is a relative or close friend. You may have also heard the term guardian ad litem. This is a person who is authorized to act on behalf of a child in connection with a litigation matter against the child.

Choosing a Legal Guardian in New York

It is important for families with children to plan ahead for the care and welfare of their children in case of a parent’s death. Part of smart estate planning is to make a will or trust and to provide for a guardian for your children. You should have a plan of how you want your children taken care of and by whom in the event you and your spouse die or one of you survive. Details should be discussed and agree upon by both parents. This way, you know your wishes are being followed and your children will be well taken care by the person you want. It is possible to name two different guardians, one for the guardianship of your child’s money and other assets, and a guardian that decides where your child is going to live, attend school, and other day-to-day decisions or one person can be delegated with all responsibilities.


You and your husband have two minor children. You decide that if something happens to both of you, the children should go live with your mother in Florida because your husband’s mother, who resides in New York, is in poor health and unable to physically take care of the children. So you and your husband each have wills drafted by your New York estate attorney providing for the guardianship of your children. This way, you don’t have to worry if an unexpected tragedy happens, you know your mother will take good care of the children. After all, she raised you, and you turned out fine!

When Does a Guardianship Become Effective?

A guardian appointed by a will becomes effective after the decedent passes away and must be approved by the New York Surrogate’s Court. The decedent’s death certificate will need to be provided to the Court. The Court will issue an order of guardianship.

If a person is deemed mentally incompetent, another family member of social agency may ask the judge to appoint a guardian. When a parent is living, becomes ill or disabled and wants to establish a guardianship, the parent can also choose a guardian through a designation or deed of guardianship, which must be approved by the Family Court. The parent’s consent is necessary. The child’s birth certificate, proof of the child’s address and name of the guardian will also need to be presented to the Court, together with a petition for guardianship. When a child is over the age of 14, the consent of the child is necessary. The Court may consider a child’s preferences as to who they want to live with and take care of them.

How Long Does a Guardianship Remain in Effect?

A guardianship remains in effect until the child turns 18 years of age. When a child is unable to care for themselves as a result of a mental or physically handicap or disability, the guardianship can remain in effect as long as the child needs the care.

Hiring an estate lawyer in New York City

Since guardianship matters can be complicated, a New York estate planning attorney should be hired, especially if you are making a will and appointing a guardian under the will. The attorney will make sure that all legal formalities are carried out in accordance with New York laws. St. Pre Law Firm can draft the necessary documentation and appear at any Court hearings. We can also handle any probate or estate administration matters that may be necessary after a person passes away to help establish the guardianship and also assist with estate tax matters.