Guardianship proceedings are designed to protect individuals who are unable to manage their personal affairs, financial affairs, or both, and can include guardianship of the person, guardianship of the property or guardianship of the person and property. Depending upon the circumstances, a guardianship can be established for a minor child, an individual with developmental disabilities, or an adult who is unable to care for themselves or manage their property.
Because guardianship proceedings involve the rights and well-being of another person, the Courts take these matters very seriously, therefore, the procedures, required documentation, and level of Court involvement vary depending upon the type of guardianship being sought and the circumstances of the individual involved.
Guardianship of the Person
A guardianship of a person may become necessary when a child’s parents are deceased, unavailable, incapacitated, or otherwise unable to care for the child. At birth, the child’s natural parents automatically have what is called, “Guardianship of the Person.” This means the guardian of the child has the right to make any and all decisions in their life, including decisions regarding the child’s health, education, welfare, and living arrangements. However, in New York State, if a minor child inherits $10,000.00 or more, a guardianship of the property is necessary.
Guardian of the Property
As stated above, if a minor child inherits $10,000.00 or more, a guardian must be appointed to manage money or property belonging to the child. This commonly occurs when a minor receives an inheritance, settlement proceeds, insurance benefits, or other assets that cannot legally be managed by the child. Normally, the child’s mother or father applies to be guardian of the child, although another family member or family friend can serve with the consent of the parents. This is accomplished through the Surrogate’s Court where the child resides. However, it should be noted the proposed guardian cannot be a felon, although the Court may make an exception, depending on the nature of the crime, as long as the crimes do not involve fraud, theft or domestic abuse. In addition to the above, the Court requires the proposed guardian provide 28 years of addresses for themselves, as well as any persons living in the home 18 years of age and older. Once a guardian of the property is appointed, any money belonging to the child is generally placed in the bank with the guardian of the property with an officer of the bank acting as a co-guardian of the account, and the money will be released to the child when he/she turns 18.
Guardianship of the Person
The proposed guardian is responsible for decisions concerning the individual’s personal care, medical treatment, education, housing, and general welfare.
Guardian of the Property
The proposed guardian is responsible for managing financial affairs, safeguarding assets, maintaining records, and ensuring that funds are used for the benefit of the individual.
Depending upon the circumstances, the Court may appoint the same individual to serve in both capacities or appoint different individuals to fulfill each role.
Guardianships Involving Individuals with Disabilities
Certain guardianship proceedings involve individuals with developmental disabilities who require assistance with personal or financial decision-making. These proceedings often require additional documentation and Court review before a guardian may be appointed.
Because every situation is unique, the appropriate proceeding depends upon the individual’s needs, level of independence, and the authority being requested from the Court.
The Importance of Family Agreement
Many guardianship proceedings move more efficiently when family members and interested parties are in agreement regarding the appointment of a guardian and the scope of authority being requested. However, disputes sometimes arise concerning who should serve as guardian, whether a guardianship is necessary, or the extent of the authority being sought. When such disagreements occur, legal representation is often necessary.
Because Surrogate’s Court Solutions, LLC is a paralegal service and not a law firm, we are able to assist with uncontested matters only. When contested issues arise, an attorney must be retained to provide legal advice and representation. Guardianships can be difficult and full of complex issues. Although a guardianship can be attempted pro se (without an attorney), this is one of those proceedings where it is beneficial to have legal counsel. Surrogate’s Court Solutions works with attorneys experienced in guardianship law, with our goal to provide knowledgeable, responsive, and cost-effective support while helping families and fiduciaries navigate what is often a difficult and emotional process with confidence and peace of mind.