Guardianship Attorneys

In New York, once a person reaches the age of 18, in the eyes of the law, he or she is an adult, presumed to be capable of making his or her own decisions. Sometimes, however, there may be extenuating circumstances that impair an adult’s ability to manage his or her own affairs, such as a disability or an incapacitating medical condition. FRB’s Elder Law Practice Group can help you navigate the legal matters involving guardianship.

What is Guardianship?

Guardianship is a legal arrangement that allows a court-appointed person or entity, called a guardian, to make decisions and act on behalf of another person, called a ward, who is unable to do so because of incapacity. Incapacity means that a person is impaired by a mental or physical condition that affects their ability to manage their personal or financial affairs. 

Understanding the Differences Between Guardianship Under Article 81 of the Mental Hygiene Law and SCPA Article 17-A

There are two types of guardianship for adults in New York: guardianship under Article 81 of the Mental Hygiene Law and guardianship under Article 17-A of the Surrogate’s Court Procedure Act. 

Article 81 Guardianships

Guardianship under Article 81 of the Mental Hygiene Law is designed to address the needs of an adult who no longer has capacity to make his or her own decisions. Under Article 81 of the Mental Hygiene Law, the Court can appoint a Guardian to manage the individual’s personal or property management needs, as necessary, and empower the Guardian to make decisions on the individual’s behalf.  

While some medical conditions, like dementia or Alzheimer’s disease, can cause a person to suffer cognitive impairment to such a degree that they lose the mental capacity to make decisions regarding their personal needs or the management of their property, the determination of whether a Guardian is needed is not based on a person’s medical diagnosis. The Court bases its consideration of whether the person requires a Guardian on his or her functional limitations and whether he or she is in danger of suffering harm if a Guardian is not appointed.

As guardianship under Article 81 requires the Court to impose the least restrictive means of intervention to address the needs of the individual, the Court can tailor the Guardian’s powers and duties to meet the specific needs and preferences of the ward, preserving as much of the ward’s autonomy and dignity as possible. The Court retains oversight over the guardianship, requiring the Guardian to report to the Court periodically, and to act in the ward’s best interests at all times (and in accordance with their wishes, when possible).  

While some Article 81 guardianships last for an indefinite duration, these guardianships can also be limited to a specific period of time. An individual who has had a Guardian appointed for them can also seek the Court’s termination of the guardianship if the individual later regains the capacity to make his or her own decisions. 

Article 17-A Guardianships

Guardianship under Article 17-A is intended for persons who are intellectually or developmentally disabled. When a child with special needs reaches legal adulthood, they often still require the assistance of another person (most often his or her parents) to assist them in navigating their day-to-day lives. This allows parents to continue to do the same activities they were previously performing to assist their children into their adult years.  

These guardianships do require a diagnosis of intellectual or developmental disability, rather than an evaluation of functional limitations.  The duration of the guardianship is indefinite, minimizing the need for a Guardian to return to Court in the future.  

Unlike Article 81 guardianships, which are more narrowly tailored in scope, Article 17-A guardianships confer expansive “plenary” powers upon the Guardian appointed, allowing the Guardian to make all or most decisions for the individual. Even so, an Article 17-A Guardian can still assist his or her ward in maintaining a great deal of independence in his or her daily activities, through special needs planning that can include access to supported living programs and other government benefit opportunities. A Guardian appointed under Article 17-A must always act in the best interests of his or her ward.   

When Is Guardianship Appropriate?

Guardianship may be appropriate when a person is incapacitated and does not have any other legal documents or arrangements that can protect their interests and rights, such as a power of attorney, a health care proxy, a trust, or a representative payee designation. 

Guardianship may also be appropriate when the person’s existing advance directives are inadequate, ineffective, or abused by the agents or representatives designated to act on the person’s behalf.  Guardianship may be necessary to prevent harm, exploitation, or neglect of the person or their property, or to provide for their health, safety, or welfare.

What If the Person Has a Power of Attorney?

A power of attorney is a legal document that allows a person, called the principal, to appoint another person, called the agent, to act on their behalf in financial and legal matters. A power of attorney can be general or limited and can be durable or non-durable. A durable power of attorney remains valid, even if the principal becomes incapacitated, while a non-durable power of attorney terminates upon the principal’s incapacity. A power of attorney can be revoked by the principal at any time, as long as they have capacity.

If the person has a valid and effective power of attorney, the court may not need to appoint a Guardian. There is a preference to uphold the validity and enforceability of powers of attorney that are knowingly and duly executed by a person, whenever possible. However, the court may appoint a Guardian if the power of attorney does not cover all the areas of the person’s needs, or if the agent is unavailable, unwilling, or unable to act. Guardianship may also be necessary if there is evidence that the agent is acting improperly, fraudulently, or contrary to the principal’s wishes or best interests. The court may also limit, suspend, or revoke the power of attorney if it conflicts with the Guardian’s authority or duties.

What is the Process Required to Become a Guardian?

The process of becoming a guardian varies depending on the type of guardianship and the circumstances of the case, but generally involves some or all of the following steps:

• Filing a petition with the Court that has jurisdiction over the person’s residence or property, requesting the appointment of a Guardian, and stating the reasons and evidence for the person’s incapacity and the need for guardianship.
• Serving a copy of the petition and a notice of the hearing date on the person, their relatives, and other interested parties, as required by law.
• Appointing a court evaluator (in Article 81 cases), who is an independent professional who will investigate the person’s condition, circumstances, and preferences, and report to the court with recommendations.
• Appointing a court-appointed attorney (in some Article 81 cases), who will represent the person’s legal rights and interests, and advocate for their wishes, if known.
• Appointing a guardian ad litem (in Article 17-A cases), who is a person who will act in the person’s best interests, if the person is unable to communicate or cooperate with the court-appointed attorney, or if there is a conflict of interest.
• Holding a hearing, where the court will hear testimony and evidence from the petitioner, the individual(s) appointed by the Court (depending on the case and type of guardianship, may include some combination of a Court Evaluator, Court-appointed attorney for the alleged incapacitated person, the Guardian Ad Litem, and any other witnesses or experts), and determine whether the person is incapacitated, and whether a Guardian is necessary and appropriate.
• Issuing an order, where the court will grant or deny the petition, and if granted, appoint a Guardian, and specify the Guardian’s powers and duties, and any limitations or conditions imposed upon the appointment.
• In some cases, filing a bond, where the Guardian may be required to post a bond or other security to ensure the faithful performance of their obligations and the protection of the person’s property.
• Filing an oath, where the guardian may be required to swear or affirm to faithfully discharge their duties and comply with the court’s order and the law.

What Powers Will a Guardian Have?

The powers of a guardian will depend on the type of guardianship and the court’s order, but generally, a Guardian may have the following powers:

• To make decisions and act on behalf of the person in matters related to their personal needs, such as where they live, who they visit or socialize with, and what activities they engage in;
• To make decisions and act on behalf of the person in matters related to their property management, such as paying their bills, collecting their income, managing their assets, investing their funds, selling or buying their property, and filing their taxes;
• To make decisions and act on behalf of the person in matters related to their health care, such as consenting to or refusing medical treatment, accessing their medical records, choosing their health care providers, participating in their health care planning, and making “end-of-life care” medical decisions; and
• To make decisions and act on behalf of the person in matters related to their legal affairs, such as initiating or defending lawsuits, applying for benefits, or executing contracts.

There are some limits that the Guardian must observe in exercising his or her powers and must strictly adhere to the limitations set forth in the Court’s order and under the law.  The Guardian is required to act in the person’s best interests and according to their wishes, if known. The Guardian must also respect the person’s rights and preferences, and encourage their participation and independence as much as possible. The Guardian must also avoid any conflicts of interest or self-dealing and act with honesty, loyalty, and diligence.

Can a Guardian Compel Medical Treatment Over Objection?

While the Guardian can make medical decisions for the person, the Guardian cannot unilaterally compel the person to receive certain forms of mental health treatment, including the administration of psychotropic medication, or involuntary placement at a hospital or residential treatment facility, over the person’s objection. There are different laws (including Article 9 of the Mental Hygiene Law) and legal procedures that govern these types of treatment. However, being appointed Guardian of a person who suffers from mental illness can allow the Guardian to have access to medical records, allow them to communicate with medical providers, and provide the Guardian with other tools that can help them to better advocate for treatment for the person through these processes.  Guardianship can also allow for a Guardian to safeguard and secure a person’s property while they are suffering from mental health issues to avoid the person’s property from being unnecessarily dissipated during a mental health episode.  It can also help to ensure that a person’s health insurance or government benefits are secured or maintained so that they can receive the medical treatment they need without interruption or delay at a time when they cannot manage these obligations themselves. 

What is a “Contested Guardianship”?

A “contested guardianship” is a guardianship case where there is a dispute or disagreement among the parties involved, such as the person, the petitioner, the person’s relatives, or the proposed Guardian, over one or more issues.  

A person who is the subject of a guardianship may oppose the appointment of a Guardian, or a family member of the person (or other “interested party”) may object to all, or some, of the relief requested in the guardianship petition. These issues may stem from the belief that the person is not incapacitated, or does not require a Guardian, or a disagreement over who should be (or shouldn’t be) appointed as the Guardian.  

A “contested guardianship” may also arise from a case where a Guardian is already appointed, and there is a desire by one or more of the interested parties to remove or replace the Guardian.  The contesting party may allege that the Guardian has acted improperly or otherwise failed to address the needs of the ward and that a different person should be appointed in their place.  They may also petition the Court if they believe it is necessary to modify or terminate the guardianship, such as in the case where a person regains the requisite capacity to make their own decisions.  

When a guardianship case becomes contested, it becomes far more challenging, complex, and costly. A contested guardianship may require more hearings, evidence, and arguments, and may result in more delays, expenses, and stress for the parties involved. A contested guardianship may also affect the person’s well-being, dignity, and relationships. It is important to consider all of these factors when determining whether to commence a guardianship case, and to discuss any potential alternatives to guardianship (such as mediation, settlement, supported decision-making, or some other intervention) that may otherwise resolve the issues, when a case is expected to be contested, before proceeding. 

What Happens Once a Person is Appointed Guardian?

Once a person is appointed Guardian, they are usually required to complete a training course (which is available online) and file papers with the Court indicating that they have accepted the appointment as Guardian and that they understand the responsibilities of the role.  

Once they are issued a “Commission” by the County Clerk, they must fulfill their obligations and responsibilities as a Guardian by assisting the person in addressing all of their personal and property management needs, to the extent of their authority. These responsibilities may include:

• Communicating and visiting with the person regularly, and maintaining a positive and supportive relationship with them;
• Informing the person of their rights and the Guardian’s role and authority;
• Consulting with the person and involving them in decision-making, as much as possible;
• Respecting the person’s wishes, values, beliefs, and preferences;
• Protecting the person from harm, abuse, or exploitation;
• Providing for the person’s care, comfort, and quality of life, including by paying their bills, and making sure that they have all of the necessary items for their daily activities;
• Managing, maintaining, and safeguarding the person’s property; 
• Advocating for the person’s interests and needs;
• Reporting to the court periodically, and as required, about the person’s medical condition, the Guardian’s actions, and the person’s property;
• Seeking the court’s approval or direction, as needed, for any significant or controversial decisions or actions (as indicated in the order);
• Cooperating with the Court, the Court Evaluator, the court-appointed attorney, the guardian ad litem, and any other professionals or agencies involved in the guardianship; and
• Complying with the Court’s order and the law, and acting in good faith and the person’s best interests at all times.

If a Person Regains Capacity, Can They End the Guardianship?

If a person regains capacity, he or she may petition the Court to end the guardianship and restore their legal rights and abilities. The person may need to provide evidence and testimony to prove their capacity and their ability to manage their affairs without a guardian. 

The Court may appoint a court evaluator, a court-appointed attorney, or a guardian ad litem (depending on the type of guardianship) to investigate and report on the person’s capacity and the need for guardianship. The court may also hear from the Guardian, the relatives, or any other interested parties who are involved in the person’s life. The Court may grant or deny the petition, and if granted, terminate the guardianship and discharge the Guardian. 

The court may also modify the guardianship and reduce or limit the guardian’s powers and duties, if appropriate.  Even if the person does not fully regain capacity, the person can still petition the Court to change the terms of the guardianship or bring their concerns about the guardianship to the Court’s attention.  

How Does the Court Make Sure the Guardian is Doing Their Job?

Once a Guardian is appointed, the Court can impose a number of different requirements upon the Guardian to ensure that they are compliant with the Court’s rules and the laws governing the guardianship.  In Article 81 guardianships, the Court appoints a Court Examiner who is responsible for assisting the Court in monitoring the Guardian’s compliance, including with respect to the filing of Initial, Annual, and Final Reports as Guardian.  A Guardian must file a final accounting and secure an Order from the Court discharging them as Guardian before he or she can be relieved of their legal obligations to their ward, so that the Court can be sure that the Guardian managed their ward’s property appropriately.  Additionally, certain people are “interested parties” under the law based upon their relationship to the incapacitated person, and those people have the ability to file a petition with the Court if they believe that the Guardian is not acting in their loved one’s best interests.  

Work With a Compassionate Guardianship Attorney

We are proud to assist our community in navigating the legal complexities of guardianship matters. Our skilled guardianship attorneys work closely with clients to develop practical legal solutions for securing the guardianship of an incapacitated adult.

Please contact us if you have any questions relating to guardianship or elder law matters.