The Basics of Guardianship in New York

Sep 14, 2021
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The Basics of Guardianship in New York

By: Jessica M. Moore, Esq.


Conservatorship and guardianship have been in the news more than ever before. Earlier this year, Netflix released the film “I Care A Lot” featuring Rosamund Pike and Peter Dinklage that followed a professional guardian as she sought guardianship over elderly people, placed them into nursing homes, sedated them, and sold their homes, cars, and other assets. While the movie is a work of fiction, another real-life scenario is unfolding in California where Britney Spears is attempting to end her thirteen-year conservatorship. Those supporting her efforts have formed the Free Britney movement in which some are attempting to reform the conservatorship process in California. Thus, the influx of interest into a relatively benign legal proceeding has many unfamiliar with the process skeptical. To quell your own or clients’ fears, this primer is intended to provide an outline of the guardianship process and answer frequently asked questions.

What is Guardianship in New York?

Guardianship, also known as conservatorship in other states, is a legal process by which a guardian is appointed by the court to provide personal and/or property management to an incapacitated individual. The purpose of guardianship is to provide an incapacitated person with the least restrictive form of intervention to assist them in meeting their needs but also, permits them to exercise the independence and self-determination of which they are capable.”[1] A hearing is held to determine what the alleged incapacitated person (“AIP”)’s needs including personal needs management and property management. A guardian may be appointed to deal either with personal need management and, or property management. The proceeding is commenced by filing a petition with the court. The petition may be filed by the AIP, any person who would be a distributee of the AIP, the executor or administrator of an estate where the AIP is a beneficiary, the trustee of any trust in which the AIP is a grantor or beneficiary, any person that resides with the AIP, any person concerned with the welfare of the AIP (including a corporation, public agency, or department of social services), or the chief executive officer of a facility where the AIP resides.

Upon receipt of the petition, the court will appoint a court evaluator to the case who will meet and interview the AIP and petitioner, and determine whether the AIP has counsel or should have counsel appointed. Most importantly, the court evaluator makes a written report to the court that includes the court evaluator’s personal observations of the AIP, the AIP’s personal and physical conditions, the financial assets of the AIP, and the choice of guardian as set out in the petition. After the court evaluator submits her petition, the court will hold a hearing in which the petitioner and AIP can present evidence, call witnesses, and cross-examine witnesses. The petitioner must demonstrate by clear and convincing evidence that the AIP requires a guardian. Once both parties present evidence, the court will determine whether or not to appoint a guardian to the AIP. If the court determines the appointment is necessary or the AIP agrees to the appointment, the court will make statutory findings on the record including, the functional limitations that led to the appointment of a guardian, the specific powers of the guardian, and the duration of the appointment. Depending on whether the guardian is appointed as guardian of the person, property, or both, the court will make further findings on the record.

Who Can Be a Guardian?

There are very few statutory limitations to who can become a guardian. Article 81 provides that any person over the age of 18 may be a guardian. Not-for-profit organizations like social services, public agencies, and community guardian programs may also be appointed as guardians of the person or property of an incapacitated individual. Additionally, a corporation may serve only as a guardian of property for an incapacitated individual. The AIP may nominate a person to be his or her guardian. To do this, the AIP may file a petition with the court or file a written instrument that is duly executed and acknowledged with the court.

In determining whether a person or entity would be an appropriate guardian, the court looks to (i) any appointment or delegation made by the AIP; (ii) the social relationship between the AIP and proposed guardian and the proposed guardian’s relationship with those concerned with AIP’s welfare; (iii) the types of care and services provided to the AIP; (iv) the types of powers the guardian will exercise; (v) the proposed guardian’s education, professional, or business experience in relation to the services required by the AIP; (vi) the nature of the AIP’s financial resources; (vii) any unique requirements of the AIP; and (viii) the existence of any conflicts of interest between the proposed guardian and the AIP.

The court’s ultimate goal is to further the best interests of the AIP. To further that objective, the court may also consider and authorize a court evaluator to review a report regarding the proposed guardian’s background. If the proposed guardian and AIP live in the same home, the court also has the authority to seek reports from other individuals residing in the household. The report may include the individual’s criminal history, including a fingerprint check, inclusion on a sex offender registry, inclusion on a statewide registry of child abuse and maltreatment, inclusion on a statewide registry of those with orders of protection, and any decisions or warrants issued against the proposed guardian or member of the household from family court. Nevertheless, such reports are not required but can provide additional context for a court in determining who is an appropriate guardian.

What are the Duties of a Guardian?

As previously mentioned, there are two types of guardianship, guardianship of the person and guardianship of property. The two forms of guardianship can be combined and one person may act as guardian of the person and property. All guardians must fulfill certain requirements, including acting only pursuant to the court’s order, demonstrating the utmost care and diligence for the incapacitated person, and demonstrating the utmost degree of trust, loyalty, and fidelity. Guardians must also file an initial and annual report as described in more detail below. Also, guardians are required to visit the incapacitated person at least four times per year.

Both personal management guardians and property management guardians must “afford the incapacitated person the greatest amount of independence and self-determination with respect to property management in light of that person's functional level, understanding and appreciation of his or her functional limitations, and personal wishes, preferences, and desires with regard to managing the activities of daily living.”[2]

Specifically, if the guardian is a property management guardian, the guardian’s duties include protecting, preserving, and accounting for the incapacitated person’s property and financial resources, finding the incapacitated person’s will (if any), using property and financial resources to support the incapacitated person and his or her dependents, filing a statement with the recording office where the incapacitated person holds property informing the office that the person is incapacitated, and delivering property to those entitled to it at the end of the appointment.

The powers of the property management guardian and personal needs guardian are set out in MHL § 81.21 and § 81.22.

What is a Guardianship Report?

Guardians are required to submit various reports to the court during the pendency of guardianship to ensure that the incapacitated person’s needs are being adequately met and that the guardian is performing his or her duties as expressed in the court’s order. Statutorily, there are three different reports that a guardian must submit: the initial report, the annual report, and the final report.

A. The Initial Report

Within 90 days of the appointment of a guardian, the guardian must file a report with the court that includes the steps that have been taken by the guardian to fulfill his or her duties and obligations for the incapacitated person. A guardian for property management’s report must include: (i) a verified and complete inventory of the incapacitated person’s property and financial resources that the guardian will be controlling; (ii) the location of the incapacitated person’s will (if any); and (iii) the guardian’s plan for the management of the incapacitated person’s property and financial resources. If the guardian is also a guardian of the incapacitated person’s personal needs the report must include (i) reports of the guardian’s visits with the incapacitated person (minimum of four per year); (ii) steps the guardian has taken for providing for the incapacitated person’s personal needs; (iii) copies of any advanced directives; (iv) the medical, dental, mental health, social and personal services to be provided to the incapacitated person; (v) the need for physical, dental, or mental health examinations to determine the incapacitated person’s needs; and (vi) applications for insurance or government benefits. The initial report will be filed with the court and copies must be sent to the incapacitated person, the court evaluator, and the court examiner unless otherwise directed by the court. If the incapacitated person resides in a facility, the report must also be sent to the chief executive officer of the facility. To ensure compliance with the above-mentioned requirements, guardians should seek assistance from accountants and attorneys as failure to comply may result in the reduction or elimination of guardian fees, and in some circumstances the removal of the guardian.

B. The Annual Report

Each May, unless otherwise directed by the court, a guardian is required to file an annual report with notice to the incapacitated person regarding the duties performed by the guardian over the year and the status of the incapacitated person. Within the report, all guardians must include, (i) his or her address and telephone number; (ii) the incapacitated person’s address and telephone number (or the person in charge of their care); (iii) any major changes in the incapacitated person’s physical and/or mental condition, as well as substantial changes to medication; (iv) the last date the incapacitated person was examined by a physician and the purpose of the visit; and (v) a statement from a professional (physician, nurse, social worker, etc.) that evaluated the incapacitated person within the past three months regarding the person’s function level and condition. Moreover, the guardian must list the services used or employed by the incapacitated person including, but not limited to, financial planners, geriatric care managers, and the like. In detail, the guardian must also list the activities performed by the guardian on behalf of the incapacitated person.

The guardian of personal needs is also required to include a resume of medical treatment provided to the incapacitated person over the prior year as well as a plan for the medical, dental, and mental health treatment of the individual for the next year. The guardian must also report to the court information related to the incapacitated person’s social condition such as the incapacitated person’s social skills, needs, and any services used or planned to be used to meet those needs.

Guardians for property management may need professional assistance in drafting and filing annual reports. As a property management guardian, each annual report must include, a copy of the incapacitated person’s tax returns for the prior year. While some incapacitated individuals hold jobs, others rely on prior investments, trusts, or government benefits. This can complicate tax returns. Moreover, the guardian is required to account for all income received and expenses paid by the guardianship from the period of January 1 through December 31 of the prior year (or the date of the appointment of the guardian). As such, guardians of property management should seek out attorneys and accountants to assist in the preparation, drafting, and filing of such reports. It is also appropriate to seek reimbursement for out-of-pocket expenses and to request commissions. Failure to properly account may result in a denial of a commission.

Reports must be filed with the court and to the administrators of any facility where the incapacitated person may live, as well as the incapacitated person, unless directed otherwise by the court.

C. The Final Report

The Final Report contains all the same information as an annual report but covers the period from the date of the last annual report until the end of the guardianship. Guardianship can end for a variety of reasons but often ends as a result of the incapacitated person’s death. However, if the guardian is being removed, the court, at its discretion, may dispense with the guardian’s final report. Moreover, if the incapacitated person is still alive, an attorney may be appointed for the individual to protect his or her rights and interests.

If you have questions regarding the preparation of any of the aforementioned documents or are concerned that someone has failed to accurately file these documents, please contact our office.

[1] MHL § 81.01

[2] MHL § 81.20

DISCLAIMER: This summary is not legal advice and does not create any attorney-client relationship. This summary does not provide a definitive legal opinion for any factual situation. Before the firm can provide legal advice or opinion to any person or entity, the specific facts at issue must be reviewed by the firm. Before an attorney-client relationship is formed, the firm must have a signed engagement letter with a client setting forth the Firm’s scope and terms of representation. The information contained herein is based upon the law at the time of publication.

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