Guardianship is a legal arrangement in which a court-appointed guardian is granted legal authority over someone who cannot care for themselves, often a minor child or an adult with physical or cognitive impairments. Guardianship can take various forms, each meant to accomplish a specific goal. Here’s what you need to know about the types of guardianship in New York State, and which one might be right for your situation.
Understanding Guardianship
Guardianship is a court-created legal structure under which an individual called a guardian receives the authority to make various decisions on behalf of a vulnerable child without parental care or an incapacitated adult.
Types of Guardianship
New York has three main types of guardianship:
- Article 81 Guardianship: Article 81 authorizes guardianships for incapacitated adults. Under this type of guardianship, the court must tailor the scope of the guardian’s authority to only those decisions the ward cannot handle themselves.
- Article 17-A Guardianship: Article 17-A guardianships serve adults with an intellectual or developmental disability. Article 17-A grants a plenary guardianship over the award. However, a person with intellectual or developmental disabilities may also use Article 81 guardianship.
- Guardianship of a Child: A concerned person can petition the court for guardianship of a child when one or both of the child’s parents become unable to care for the child, such as due to the parent’s death, disability, illness, or addiction issues.
Article 81 guardianships typically lead to limited guardianship, meaning the court may create one of several different types of guardianship, such as:
- Guardianship of the person authorizes the guardian to manage the ward’s personal affairs, including healthcare, residence, and educational/social needs.
- Guardianship of the estate authorizes the guardian to manage the ward’s financial affairs, including receiving income or assets on the ward’s behalf, paying the ward’s expenses, and buying or selling property for the ward.
Factors to Consider in Choosing the Type of Guardianship
Factors that courts and potential guardians must consider when choosing the type of guardianship and the scope of authority conferred by the guardianship include:
- The ward’s needs, based on their age and physical/mental capacity
- Whether the ward can make specific decisions on their own or with the assistance of a trusted advisor
- The expected duration of guardianship (temporary vs. the rest of the ward’s life)
- The potential guardian’s ability to fulfill their responsibilities
- The legal requirements and processes for setting up specific types of guardianship
Steps in Establishing Guardianship
The process of setting up guardianship in New York begins with filing a petition with the court. Any person 18 or older may petition for guardianship over a vulnerable child or incapacitated adult. Usually, a family member or friend will petition for guardianship, although the court can select another qualified adult or non-profit organization.
The court will conduct a hearing on the guardianship petition to determine whether the alleged vulnerable child or incapacitated adult needs guardianship. For guardianship of the child, the court will examine whether either of the child’s parents, who have custody and parental rights, can care for the child. For guardianships over incapacitated adults, the court must find that the individual:
- Cannot meet some or all of their personal or financial needs
- Cannot make reasonable decisions regarding their personal or financial needs
- Face a risk of harm because they do not recognize their inability to make specific decisions
When the court determines that an incapacitated adult requires guardianship, it must determine the scope of the guardian’s authority. In Article 81 guardianship, the ward retains any decision-making authority not explicitly granted to their guardian. The court will examine whether the person can make specific personal or financial decisions alone or with help from a trusted advisor, such as a family member, friend, or legal/financial professional.
Contact a Guardianship Lawyer Today
Do you have a vulnerable loved one who needs a trusted individual to look after their needs and interests? If so, guardianship can give your family the legal tools needed to protect your loved one’s welfare. Contact Kohan Law Group today for an initial consultation with a guardianship attorney to learn more about the different types of guardianship and decide which form may help you protect your loved one’s interests.