When an individual is incapacitated and cannot manage their own property, a guardian is appointed by the court in New York to handle the management of the person’s property. A family member or third party such as a nursing home or state agency can file a petition for guardianship with the court. Since property management guardianship proceedings can be complicated, generally the person requesting the guardianship hires estate lawyers in New York to represent them, and to prepare and file the petition for guardianship with the court.
Basic Property Management Guardianship Powers
Under New York law, a guardian who has been appointed as guardian of property management is expected to manage a loved one’s income and assets with the utmost care and in a prudent manner being cautious about the type of investments that the guardian makes with the ward’s money. The duties of an appointed guardian of property management are set forth in the court’s order and judgment and must be followed precisely.
Typically, the court will order the guardian of property management to perform the following basic management powers:
- Paying bills
- Collecting rents
- Making building repairs
- Handling banking and financial accounts and other financial decisions as needed
The guardian can also be given additional powers such as managing a business, buying and selling real estate, engaging in investments, overseeing legal matters with the assistance of an attorney or assisting with obtaining government benefits for the ward such as social security, SSI, VA or Medicare. The guardian is expected to protect the individual’s assets and prevent financial abuse or fraud. Therefore, the guardian is expected to be trustworthy and loyal.
What You Cannot Do
There are certain activities that a guardian assigned to manage a ward’s property cannot do such as:
- Mix the ward’s money with the guardian’s money
- Transfer a ward’s property into the guardian’s own name
- Borrow money from a ward
- Make risky and bad investments
- Revoke any legal documents that a ward made such as will or trust prior to the guardian’s appointment
- Filing income tax returns or hiring anyone else to prepare them on behalf of the ward unless the guardian has been given those powers by the court
So for example, if you are the guardian of your Aunt Sally Jones’ property, and you sell her home, you cannot pocket the sale proceeds and use the money for your own personal expenses. The sale proceeds belong to your Aunt Sally’s estate. You cannot transfer funds from her personal bank account to your personal checking or saving account funds. You are expected to put the funds in a guardianship account for your Aunt’s benefit. Generally, a guardianship account is opened at bank or other financial institution. The account will have your Aunt’s social security number, but it will have your name, Julia Smith as guardian for Sally Jones, an incapacitated person.
It is recommended that whenever a guardianship needs to be established for the management of an incapacitated person’s property, the family member of other party seeking the guardianship, should consult with a New York guardianship lawyer for assistance. Mike St.Pre can prepare the petition for guardianship, attend court hearings and assist with other estate matters. Call us now. We will do the job right.