A guardianship is typically used by family members to make sure that their loved one is taken care of in a proper manner and that their financial interests are also protected. Under New York law, there are two different types of guardianships that may be established. A Guardianship under MHL Article 81 is primarily used for persons who are mentally or physically incapacitated, such as elderly seniors or victims of brain trauma or brain disease. A guardianship under Article 17-A of the Surrogate Court Procedure Act is for the care of minor child or a disabled child. Guardianship duties vary depending on an individual’s physical and financial needs. The court will issue a Guardianship Order which sets forth the specific duties of the guardian.
For example, if your sister appointed you guardian of her children in her will and her wishes were that her children live with you, then you would be responsible for the day-to-day decisions regarding their care and welfare, including education and medical decisions. On the other hand, your sister may have also appointed a trustee at the bank to handle her financial affairs on behalf of her children.
If you are the guardian of your elderly aunt, then you may be required to make health care decisions for her such as whether to place her in a nursing home or getting her home health care, paying her bills and making sure her day-to-day needs are being met.
Since establishing a guardianship is a complicated legal proceeding, it requires the assistance of a New York guardianship attorney to prepare the petition and other necessary documents. The attorney is generally hired by the petitioner requesting the guardianship, which may be a family member or other person, to represent them at the guardianship hearing.
Typically, a guardian is responsible for the following duties:
- Physical location of where the individual lives
- Day-to-day decisions for the individual’s welfare such as cooking and food decisions, grooming, housekeeping, shopping for clothes and other items and transportation
- Money management, banking, buying and selling investments and real property
- Deciding whether special nursing care or home health care is necessary, especially when the individual is an elderly person
- Making medical and dental health care decisions
- Assist with obtaining social security, disability, Medicaid or Medicare benefits
- Management of bank accounts and other assets, signing checks and paying bills
- Making other financial decisions and investments
- Filing income tax returns and other estate tax planning such as making estate gifts
- Visiting the individual at least 4 times a year if the individual does not reside with the guardian
- Making accounting and other reportings to the court
Who May Act as Guardian?
A guardian must be 18 years of age, a legal resident or a U.S. citizen. Typically, a guardian is a close family member such as a sibling, grandparent, step-parent, aunt or uncle, but can also be a third party such as a court-appointed person. A guardian is not allowed to access the individual’s assets for their own use and benefit. A guardian of a minor has the same legal powers and authority as the child’s parent, but the relationship between the child and the parent always remains the same. More than one guardian may be appointed with different responsibilities. One may have the responsibilities of acting as the guardian of the person, which includes the physical care of the individual. The other may only have financial responsibilities such as manage the individual’s assets and paying their bills.
Before establishing a guardianship, it is recommended that you seek the advice of a NY estate attorney. The lawyer can also discuss other estate planning options such as a power of attorney or health care proxy and can assist with probate litigation and routine probate estate and trust matters.