A guardian protects the well being and assets of the person for whom they are responsible. Guardianship is a legal relationship where the Court gives a person the legal right to make decisions for another person who cannot make decisions for him or herself. The Court will grant the Guardian legal authority to care for the personal and property interests of another person, typically called a ward. The three situations where Guardianship may be beneficial are: guardianship for an incapacitated senior, guardianship for a minor, and guardianship for developmentally disabled adults. Schedule a consultation with one of our experienced attorneys to help you determine the appropriate process for your particular case.
Article 17-A Guardianship NY
In New York State, a child is emancipated at age eighteen (18) regardless of his or her diagnosis or disability (this is also true in New Jersey and Connecticut). Emancipation means that the child is now an adult and can make decisions regarding his or her own affairs. If a developmental disability prevents your child from being able to make independent decisions or manage his or her own affairs, and you would like to obtain guardianship, you must file a Petition in Surrogate’s Court. Article 17-A of the Surrogate’s Court Procedure Act pertains to individuals with mental retardation, developmental disabilities, or traumatic brain injury. One licensed physician and one licensed psychologist, or two licensed physicians, at least one of whom is familiar with or has professional knowledge in the care and treatment of people with such a disability and has qualifications to certify that the person is incapable of managing her/himself and/or her/his affairs by reason of disability, and that such condition is permanent or likely to continue indefinitely must make such certification. Petitioners should also consider naming a successor or stand-by guardian in the event they cannot serve as guardian themselves to avoid potential issues in the future.
Article 81 of the Mental Hygiene Law NY
Article 81 of the Mental Hygiene Law applies to people who are suspected of being mentally incapacitated, such as older adults, those with mental retardation or developmental disabilities, and minors. A guardian may be appointed when the individual, Alleged Incapacitated Person (AIP) is incapable of taking care of personal needs or managing property. A guardian is only appointed if it is the least restrictive alternative, meaning that there is no other feasible way to help this individual. The AIP retains all the powers and rights that the guardian is not granted. An Article 81 proceeding is started by filing an Order to Show Cause and Petition in the Supreme Court of the County where the AIP resides or is physically present. The AIP can agree to the guardianship or the Court can determine that the individual is incapacitated in accordance with the statute.
Children are emancipated in New Jersey at age eighteen (18) regardless of disability. A family member or other interested person must file a Petition in the Superior Court where the ward resides. All applications for guardianship require valid assessments from either a psychologist, psychiatrist or medical doctor licensed in the State of New Jersey. The purpose of this assessment is to verify the need for a guardian and if so, whether General or Limited guardianship is required. Under general guardianship, the guardian makes decisions and gives consents related to all areas of a person’s life. Limited guardianship applies only to certain areas specified by the court; these areas could include residential, vocational, legal, medical and educational. Additionally, financial decision making will be assessed if seeking guardianship of property.
In Connecticut, children are emancipated at age eighteen (18) regardless of disability. In order to oversee the financial or personal affairs of an adult who cannot do so for themselves, one must petition for conservatorship in Probate Court to become a conservator. Conservatorship may be voluntary or involuntary meaning that an adult may request assistance in managing affairs, or a court must determine that the ward is unable to manage personal affairs, respectively. There are two types of conservators: conservator of the person, supervising personal affairs and ensuring basic needs are met, and conservator of the estate, supervising financial affairs such as property, asset and income management. A family member or friend may be appointed conservator. The court tries to determine who the conserved person prefers but, if a conflict exists, may appoint an uninterested party.
In all states, guardianship is a serious responsibility. Guardians are fiduciaries, which means they must act in the best interest of the ward including when making financial, medical, or educational decisions, establishing daily routines and living arrangements, and preparing for the future. Contact one of our attorneys today to determine what your next steps should be regarding guardianship or a less restrictive alternative such as a power of attorney.