Guardianship Attorneys

Adults are generally presumed to be capable of making their own decisions – but the reality is that many adults who suffer from cognitive impairment are limited in their ability to grasp the impact of the decisions they must make on a day-to-day basis, leaving them vulnerable to neglect, harm, or financial exploitation if proactive steps are not taken to attend to their personal and property-related needs. When a loved one can no longer manage his or her own affairs or make decisions regarding their medical care or personal needs, legal guardianship may be the safest way to protect their dignity, health, and assets.

At FRB, our elder law guardianship attorneys know that guardianship is a delicate and nuanced area of law, one that must balance the need to protect older individuals from potential harm, while respecting their wishes, preferences, and closely-held beliefs, to the greatest extent possible. Whether you need help appointing a legal guardian for an aging parent, an adult child with disabilities, or a family member suffering a sudden medical crisis without comprehensive advance directives in place, our experienced guardianship attorneys skillfully and compassionately guide our clients through this sensitive legal process – from the initial consultation, through the court proceeding, to navigating the ongoing compliance obligations that a guardian must fulfill after being appointed.   

When is Establishing Guardianship Necessary? 

Guardianship can become necessary when a person’s cognitive or functional decline makes it unsafe for them to manage essential decisions and activities of daily living – such as paying bills, accessing benefits, consenting to medical care, or choosing a safe living environment – and there is no effective alternative (such as a power of attorney or health care proxy) in place. 

The need for guardianship often arises unexpectedly and urgently, after a hospitalization, a sudden injury, the discovery of financial exploitation, or when essential care decisions must be made quickly, but legal authority is absent or unclear. For families with a child with special needs, guardianship is a more predictable consequence of their child reaching the age of 18 – and therefore legally presumed to be able to make their own decisions – if their intellectual or developmental disability substantially limits their independent decision-making ability, requiring the ongoing support and supervision of a guardian to ensure their safety and well-being.

Proving the appointment of a guardian is necessary is a crucial element in the legal guardianship process. Whether the need for guardianship is foreseeable or arises unexpectedly amidst an emergency, our guardianship attorneys can help you evaluate options and determine the right path based on your family’s goals and the individual’s needs.

What Are the Types of Guardianship Proceedings? 

In New York, adult guardianship matters generally fall under two primary frameworks: Mental Hygiene Law Article 81 guardianships and SCPA Article 17-A guardianships. The appropriate type of proceeding for an individual’s circumstances must be strategized and determined early in the process, as this impacts where the case is filed, what proof is required, and how the court structures a guardian’s powers. 

SCPA Article 17-A Guardianship

Article 17-A guardianships are special proceedings that are typically brought by a parent, for his or her child who is intellectually and/or developmentally disabled, after the child reaches the age of 18 (and “legal adulthood” under the laws of the state of New York). 

Article 17-A guardianship proceedings are filed in the Surrogate’s Court, and are the appropriate legal proceeding in cases where a child with special needs continues to need the support, oversight and assistance of a parent (or other adult) to manage their affairs, and assist them in performing their activities of daily living, once they reach legal adulthood. In this type of guardianship proceeding, the court evaluates whether appointing a guardian is in the individual’s best interests, and, if a guardian is ultimately appointed, the guardian will typically receive broad legal authority to make decisions for the individual (similarly to the authority a parent has over their child prior to age 18).

Before commencing a SCPA Article 17-A guardianship proceeding, our experienced guardianship and special needs planning attorneys can evaluate whether less restrictive options are available as an alternative to guardianship (such as supportive decision-making or execution of advance directives). If an Article 17-A guardianship is the right path forward, our guardianship attorneys can help you understand the guardianship process, build a well-supported petition, and advocate on your behalf throughout the court proceeding.

Article 81 of the Mental Hygiene Law

Guardianship proceedings commenced pursuant to Article 81 of the N.Y. Mental Hygiene Law are appropriate in cases where an adult, who previously had the requisite capacity to make his or her own decisions, no longer has the capacity to manage his or her own affairs, or attend to his or her personal needs.  Article 81 guardianships are frequently brought on behalf of older individuals suffering from dementia or Alzheimer’s disease, or other forms of cognitive impairment that render them unable to understand the nature and consequences of their diminished capacity, and their functional limitations. 

Article 81 guardianship cases are generally brought in the Supreme Court or County Court, and are designed to seek the “least restrictive means of intervention” – and as such, judges will grant only those powers that are narrowly tailored to meet the needs of the individual. The need for guardianship is not determined based on an individual’s diagnosis, but on evaluation of their functional limitations, and to what extent an individual needs assistance in meeting their personal needs or property management needs (or both). In urgent situations, the court may also consider temporary guardianship, with specific, time-limited powers to prevent immediate harm or financial loss while the case is pending.

While the existence of a well-crafted Power of Attorney and Health Care Proxy can sometimes obviate the need to pursue a legal guardianship proceeding, this is not always the case, as sometimes, these advance directives are found to be legally invalid (due to irregularities in their preparation or execution, for example), or are otherwise inadequate to fully meet the needs of the person who is alleged to be incapacitated.  

In cases where an incapacitated adult is believed to be the victim of elder abuse, financial exploitation, or some other predatory harm being perpetrated upon them, Article 81 guardianship allows a court to intervene in bringing urgent help to individuals who are particularly vulnerable to ongoing harm and maltreatment. With a stellar record of successful outcomes in guardianship cases involving fraud, abuse, and financial exploitation of the elderly in guardianship proceedings, our experienced guardianship attorneys have the skill and expertise to handle these complex and challenging cases.

What is the Process for Establishing Guardianship? 

Establishing legal guardianship is a multi-step, court-supervised process. It typically begins with identifying the right type of guardianship proceeding, based on the facts and circumstances involved (such as the individual’s diagnosis, age, and extent of assistance needed). Your guardianship lawyer will evaluate your options and help you determine the appropriate court and filing strategy, because different rules and procedures apply depending on the situation and the powers needed.

When commencing a guardianship proceeding, the first step is to file a petition with the Court to request that a Guardian be appointed – and, if appropriate, the petition can also request other judicial relief that may be warranted under the circumstances. Depending on the court in which the petition is filed and the type of guardianship sought, there will be different papers that will need to be filed along with the petition, and specific processes that will follow the initial filing.  In either case, however, the purpose of the petition is to explain to the Court why the petitioner believes the appointment of a Guardian is appropriate, and to identify the specific interventions the Court is asked to perform in order to provide for the needs of the individual who is alleged to be incapacitated.

After filing, notice must be provided to required people – including the alleged incapacitated person, and other interested parties – so they can have an opportunity to participate or raise concerns about the application before the Court. In many adult guardianship cases, the Court appoints a neutral Court Evaluator to investigate the allegations raised in the petition, and counsel may be appointed for the alleged incapacitated person, as well. After that process is complete, the Court holds a hearing to decide whether a guardianship is necessary, and, if so, what powers the Guardian should have. If the judge grants the guardianship request, the order will specify the Guardian’s authority – such as decisions about medical care, living arrangements, and property management – and typically requires ongoing oversight by the Court following the Guardian’s appointment. 

Even after the guardianship proceeding is completed, there are ongoing obligations that a Guardian must comply with following his or her appointment by the Court. Depending on the type of guardianship, these obligations may include completion of a mandatory training course, preparing and submitting timely reports and accountings to the Court, and obtaining and maintaining a surety bond, when required to do so. An experienced guardianship attorney can help you understand and comply with post-appointment obligations and provide assistance in preparing and completing initial, annual, and final accounts and reports to the Court, so that the guardianship remains in good standing.

Who Can Be a Guardian? 

In many cases, the best guardian is someone who already knows the person well – such as a spouse, adult child, sibling, or other trusted family member of the incapacitated individual. Courts generally look for someone who is responsible, responsive, and willing and able to act in the person’s best interests, especially where medical care decisions, housing choices, and financial management are involved. 

If there is conflict among family members or concerns about undue influence, the court may scrutinize the proposed guardian more closely, or consider an alternative appointment, including the appointment of an independent guardian (or co-guardians). In some situations, a nonprofit, public agency, or community guardian may be appointed when there is no suitable individual available. FRB can help you understand who is qualified, prepare you for the Court’s questions, and strategize a plan to demonstrate why the proposed guardian is the right fit.

How Our Guardianship Attorneys Can Help You 

Guardianship is not just paperwork – it’s a high-stakes legal process that directly affects a person’s day-to-day life and potentially restricts their right to make decisions about their own medical care, social environment, and finances. They are often fraught with emotion and involve complicated family dynamics, many of which become even more pronounced when faced with a crisis, and where opinions may differ regarding the best path forward.  

FRB guardianship attorneys demonstrate the skill, experience, and judgment necessary to know how to navigate these complex issues, counsel clients through difficult decisions, and advocate effectively for the best possible outcome for their clients – one that respects the autonomy and dignity of their loved one, while ensuring that their safety, well-being, and preservation of their property is paramount at all times.

As part of their approach to the guardianship process, FRB guardianship attorneys begin by listening to your concerns, and assessing whether guardianship is truly necessary – or whether a less restrictive option may work, and obviate the need for guardianship (including facilitating the execution of advance directives, such as a power of attorney or a health care proxy, when possible, or by engaging in supported decision-making). If guardianship is the right solution, we handle the details that often overwhelm families: preparing and filing the petition, organizing supporting documentation, coordinating service on interested parties, and helping you present a clear plan to the Court. We also help ensure the guardianship request is appropriately tailored – seeking only the powers needed to provide for the incapacitated individual’s needs – because courts focus on fitting the remedy to the person’s real-world limitations and risks.

Our experienced guardianship attorneys represent clients through the court hearing and work closely with court-appointed professionals involved in the case. After the court appoints a legal guardian, we continue to support you in understanding the obligations a guardian has after the court proceeding is over, providing guidance on fiduciary responsibilities, practical decision-making, and required reporting to maintain compliance.  And because guardianship often intersects with other areas of law, FRB attorneys can assist with a range of other legal services that may be needed – including real estate services, litigation, corporate services, or estate planning, where appropriate, for the guardian to fully provide for the needs of their ward once following their appointment.

Work With a Compassionate Guardianship Attorney 

Guardianship decisions can be emotionally difficult, and the court process can feel daunting, especially when your loved one’s health or safety is on the line. FRB is here to help you move forward with clarity and confidence, whether you’re initiating guardianship requests, responding to a contested guardianship proceeding, or seeking temporary guardianship in an emergency.

To speak with a guardianship lawyer about your situation, contact FRB today to schedule a confidential consultation and learn how the guardianship attorneys on our elder law team can help your family protect the person you love in their moment of need.