How to Become a Legal Guardian in New York

Caring for a loved one as they get older can be difficult. When that loved one needs help with paying bills and other tasks, a legal guardian may be the answer to make sure they get help if they do not have advance directives and have lost the ability to sign advance directives. A guardian can both advocate for the person and oversee their affairs so that they are cared for. 

What Does it Mean to be a Legal Guardian? 

A legal guardian is someone who steps up to assist a person who is partly or completely incapacitated. The affected person may or may not understand that they need help and are unable to care for themselves, including handling their own decisions and affairs. This can include bill paying, personal and medical care decision-making, and even decisions regarding living arrangements. Some individuals may have the ability to handle some of their everyday affairs, and some simply can’t care for themselves anymore.  

There are two types of guardianships in New York: 

• Article 17-A Guardianship, which is governed by Article 17-A of the Surrogate’s Court Procedure Act. This type of guardianship is used to appoint a guardian for adults 18 or over who are developmentally or intellectually disabled, with conditions such as autism, traumatic brain injuries, or cerebral palsy. 
• Article 81 Guardianship, which is governed by Article 81 of New York’s Mental Hygiene Law, and covers incapacitated adults. These guardianships allow the court to tailor a court order to give the guardian only the powers needed for the incapacitated person. 

A guardian handles the affairs of the incapacitated person, or IP, as needed. This can include family members or an independent guardian appointed by the court.

How to Gain Guardianship of an Adult in New York

Anyone interested in protecting an incapacitated person (IP) can become a guardian, including family members, if they qualify. A person with bad credit, a felony conviction, a history of domestic violence, or who can’t be bonded, will not qualify to serve as guardian. If someone needs a guardian but no family member is qualified, the court will appoint someone who may be with a social service agency or a trained professional. 

A person seeking to become an adult guardian has to follow a process: 

1. File a guardianship petition in court and request to be appointed guardian. In the petition, the petitioner describes the alleged incapacitated person’s (AIP) condition and inability to perform the activities of daily living. 
2. The court may appoint an independent evaluator who will investigate and file a written report with the court with findings and recommendations. The judge may also appoint an attorney for the AIP under certain circumstances, which can be in addition to or in lieu of the court evaluator. A hearing will be held with the AIP in attendance if at all possible. If the AIP wants to fight the guardianship, the judge will appoint legal counsel for them if they do not hire their own attorney. 
3. The petitioner presents evidence to support their claim. If the AIP is contesting, their attorney will also present evidence. If there is clear and convincing evidence that the AIP is incapacitated, the judge will appoint a guardian. 
4. The guardian will have only as much power over the AIP as necessary to ensure that they have as much independence as possible. The guardian must visit the AIP four times per year minimum and submit annual reports to the court. 

Individuals who do not want or believe they need a guardian can challenge the guardianship petition, as can their family members. If a guardian is appointed and the IP or their family members believe the guardian is not acting in the IP’s best interest, the guardian can be removed. The guardianship will last until it is terminated by the court or upon the death of the IP. 

This is different from the guardianship of a minor child or a child who has a developmental disability, which matter is handled in the Surrogate’s Court. 

What A Guardian Does 

Much of what the guardian will do is based on the capacity of the IP and the powers awarded by the court. Once appointed, a guardian may be responsible for: 

• Paying bills on behalf of the IP
• Handling other financial transactions and gathering assets
• Handling tax returns, planning and related matters
• Arrangements for medical and dental care
• Arrangements for home health care, or transitioning to a nursing home 
• Assisting with obtaining Medicaid eligibility
• Making healthcare decisions, including end-of-life care

Guardians can assist someone who is unable to properly take care of themselves by making arrangements on the IP’s behalf for things like home health care, housecleaning, and other assistive services. 

Additionally, a guardian can help an IP who is the target of physical, financial, or other types of elder abuse, including senior scams and financial elder abuse by filing restraining orders, criminal complaints, and civil lawsuits to recoup assets. 

Work With an Elder Law Attorney During the Guardianship Process

Starting a guardianship proceeding is a difficult decision and one that is undertaken when the individual faces harm if their care needs are not met. An elder law attorney experienced in guardianship matters can answer your questions and make the guardianship process easier for everyone involved. 

Cona Elder Law’s experienced Long Island Elder Law attorneys and seasoned litigators will help you navigate the complex court process to protect your loved one in a guardianship proceeding. We are strong advocates for our clients while we compassionately guide you through the guardianship process in all court jurisdictions throughout New York State. Contact us today for an initial consultation.