GUARDIANSHIP IN NEW YORK STATE

Wayne Burton, a guardianship attorney in Albany NY, may be able to provide legal representation and/or settle a legal dispute. Please contact us or call us today at 518-449-3107 Ext.120 to schedule a free consultation.

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Legal Guardianship

Choose the topic that most closely relates to your guardianship needs/questions:

+ Understanding the Basics of Guardianship
+ Appointment of a Guardian for an Infant
+ Appointment of a Guardian of a Mentally Retarded or Developmentally Disabled Person
+ Appointment of a Guardian of an Incapacitated Person


The Basics of Legal Guardianship in New York

There are generally three types of proceedings available to appoint a guardian of the person or property of a person.

One type of proceeding is for the appointment of a guardian of the person or property of an “infant”, that is, a person under the age of 18 years. (Being under the age of 18 years is deemed to be a legal disability.)

The second type of proceeding is for the appointment of a guardian for a mentally retarded person or a developmentally disabled person.

The third type of proceeding is for the appointment of a guardian for an incapacitated person, such as someone who is elderly and frail or someone who is suffering from Alzheimer’s disease or Parkinson's disease.

Please contact us or call us today at 518-449-3107 Ext.120 to schedule a free consultation.
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Proceeding for the Appointment of a Guardian for an Infant:


This proceeding usually takes place in the Surrogate’s Court of the county in which the infant resides, although the proceeding could also be brought in Supreme Court.

A guardian may be appointed by the court whether or not the parents are alive and even whether or not the parents consent. Anyone may petition for the appointment of a guardian for an infant, even the infant himself or herself if he or she is over the age of 14 years.

The guardianship may be temporary or may be permanent, and the guardian may have the power to make decisions concerning the protection, education, medical condition, health condition and physical custody of the infant. Also, the guardianship may be limited to the person of the infant, or to just the property of the infant, or the guardianship may include both.

The court may authorize the guardian to sell personal or real property owned by the infant.

The court may also appoint only a standby guardian, for example, where the only parent alive is ill and is expected to become incapacitated or to die.

A guardian of the property of an infant will be required to file annual reports with the court concerning the property and income of the infant.

Please contact us or call us today at 518-449-3107 Ext.120 to schedule a free consultation.
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Proceeding for the Appointment of a Guardian of a Mentally Retarded or Developmentally Disabled Person:


A mentally retarded person is someone who has been certified by one licensed physician and one licensed psychologist, or by two licensed physicians, as being incapable of managing himself or herself or his or her affairs by reason of mental retardation. The certification must also state that the mental retardation is permanent in nature or at least likely to continue indefinitely.

A developmentally disabled person is someone who has been certified by one licensed physician and one licensed psychologist, or by two licensed physicians, as being incapable of managing himself or herself or his or her affairs by reason of being developmentally disabled. The disability must be permanent in nature or at least likely to continue indefinitely, and the disability must be due to cerebral palsy, epilepsy, neurological impairment, autism or traumatic head injury or any other condition closely related to mental retardation, or attributable to dyslexia, and provided further that the disability began before the person attained the age of 22 years (except in the case of traumatic head injury).

A guardian generally would have the authority to make health care decisions, including withholding or withdrawing life sustaining treatment.

While the courts may favor the petition of someone who is related to the mentally retarded or developmentally disabled person, such as a parent or sibling or child, any person at least 18 years of age may petition the court.

The court may hold a hearing and may even hold a jury trial. The court may also dispense with a hearing or a trial under certain circumstances.

As part of the application to the court, the petitioner will also file, along with his or her petition, certifications from at least two licensed physicians or a licensed physician and a licensed psychologist, certifying that the person is mentally retarded or developmentally disabled.

The proceeding is usually brought in the Surrogate’s Court of the county in which the mentally retarded or developmentally disabled person resides, although the proceeding may also be brought in Supreme Court.

Please contact us or call us today at 518-449-3107 Ext.120 to schedule a free consultation.
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Appointment of a Guardian for an Incapacitated Person:


The court has the power to appoint a guardian of an incapacitated person if the appointment is necessary to provide for the personal needs of the person, including food, clothing, shelter, health care, safety or managing the property and financial affairs of that person.

To determine that a person is incapacitated, the court generally must find that the person is likely to suffer harm because the person is not able to provide for his or her personal needs or property management, and that the person does not understand and appreciate the nature and consequences of his or her inability to do so.

The proceeding is brought in Supreme Court and may also be brought in County Court. Also, in certain circumstances the proceeding may also be held in Surrogate’s Court in the situation where the incapacitated person is interested in an estate proceeding in Surrogate’s Court and he or she is entitled to property or money from the estate.

The petition for appointment of a guardian may be brought by the incapacitated person himself or herself or by a person who would inherit from the incapacitated person in the absence of a will, or the executor or administer of an estate when the incapacitated person is a beneficiary of the estate, or by a person with whom the incapacitated person resides or, generally, any person concerned with the welfare of the incapacitated person.

The court is required to appoint a “court evaluator”. The Office of Court Administration maintains a list of court evaluators and the court evaluator appointed may be an attorney, physician, psychologist, the Mental Hygiene Legal Service or any other person having the requisite training and skills to serve as a court evaluator.

The court evaluator will have many duties in reaching a determination and reporting to the court whether a guardian should be appointed and, if so, what powers, duties and limitations the guardian should have. Also, whether the incapacitated person should have his or her own attorney, whether the incapacitated person is able to participate in a hearing before the court, and what would be the least restrictive form of guardianship necessary, and if there are potential conflicts of interests between any of the parties and the incapacitated person. As part of his or her investigation, the court evaluator will also want to review the medical and psychological records of the incapacitated person and meet with his or her health care providers.

Unlike with a proceeding for the appointment of a guardian for an infant or a guardian for a mentally retarded person or a developmentally disabled person, a hearing by the court is always required.
If the court finds that the person alleged to be incapacitated is indeed incapacitated, the order appointing a guardian is to provide for the least restrictive form of guardianship, that is, the powers of the guardian will be limited to only those powers necessary to assist the incapacitated person with respect to personal needs or property and financial affairs. In other words, typically the guardianship will not be a “general” guardianship but will be limited depending upon the specific circumstances and needs of the incapacitated person.

A guardian will be required to file annual reports concerning the incapacitated person and the personal and property and financial matters in which the guardian has acted or was authorized or required to act.

The guardian appointed will be required by the court to complete a training program for guardians. The training program is administered by the Chief Administrator of the Courts.


Please contact us or call us today at 518-449-3107 Ext.120 to schedule a free consultation.
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