More Information on Guardianships

Guardianships

When an individual becomes unable to care for either their personal needs or their property or both, it may be necessary to have a legal guardian appointed for the individual. The first step that should be taken is to find out if the individual previously executed a Durable Power of Attorney. If they have a Durable Power of Attorney it might be possible depending on the particular circumstance to simply record the Power of Attorney in the county clerk’s office where the individual resides and bring certified copies to the financial companies where the individual has their personal assets.

However, if an individual has not executed a Durable Power of Attorney and is unable to do so now or if the individual does not wish to have someone else make personal and financial decisions for them, it may be necessary to bring an Article 81 guardianship proceeding in the Supreme Court of the county with the Alleged Incapacitated Person (AIP) resides. A guardianship proceeding begins by the petitioner, the individual who desires to become the legal guardian of the AIP, filing with the Supreme Court an Order to Show Cause and a Petition. The Petition sets forth the allegation showing that the individual is unable to make decisions on their own.

The Supreme Court justice may appoint a court evaluator to act as a neutral party and meet with all sides to help the Judge in making his decision regarding the incapacity of the individual and appointment of a guardian. The court evaluator prepares a report that will be submitted to the judge setting forth his or her findings. The Judge may also appoint counsel for the AIP to make sure that the AIP is informed of the guardianship and that his or her rights are not compromised. Additionally, at some point a hearing will occur and the judge will hear from all parties and a decision will be made either in court or through a written decision.

Once a guardian has been appointed, the judge will determine the powers that the guardian has over the AIP. A guardian may be granted powers over the person meaning making personal decisions including but not limited to where the AIP is going to live and also if they may travel. A guardian may also be appointed as a Guardian of the Property meaning making financial decision for the AIP, protecting the AIP’s assets and paying debts. Many times the guardian receives both the personal and property management powers, however, each circumstance is different since the goal in guardianship proceedings is to make sure the AIP is taken care of by using the least restrictive measures to accomplish this goal.

A Guardian may be appointed for a specific length of time or may be appointed for an indefinite period. If a circumstance were to arise where the AIP was able to handle their affairs again, a petition can be made to the court to have the guardianship dissolved.

A guardian must visit the AIP at least four times per year and also must account to the court on a yearly basis by filing a report showing the financial transactions that have occurred with the AIP’s assets and also answering questions regarding the personal decisions made on behalf of the AIP. The court may also require a guardian to take an education course that outlines the duties and requirements of a guardian.

It is important to note that there are other types of guardianship proceedings including guardians for minors and developmental disabled individuals.

Guardianship proceedings are very complicated, expensive and may become distasteful. A guardianship proceeding is something that should be understood completely by the petitioner prior to commencing such a proceeding. It is important to consult a qualified attorney prior to making a commitment to such a proceeding.