1. How do I know if guardianship is an appropriate course of action?
An individual may require the appointment of a guardian if he/she is unable to manage his/her own financial affairs and personal needs due to a physical or mental impairment. However, guardianship is treated as a last resort. It is commonly used in situations where an individual is incapable of executing any advanced directives, such as a Power of Attorney, Health Care Proxy, or a Trust, or where an individual may have the ability to execute such documents, but has no family member or friend to name as his/her agent.
2. Who can commence a guardianship proceeding?
The party who commences the guardianship proceeding is referred to as the Petitioner and the subject of the proceeding is referred to as the Alleged Incapacitated Person. Under New York's Mental Hygiene Law, a guardianship proceeding may be commenced by (1) the Alleged Incapacitated Person, (2) a presumptive distributee of the Alleged Incapacitated Person (meaning anyone who is expected to take or share in the estate of the Alleged Incapacitated Person, such as a spouse, child, or parent of the Alleged Incapacitated Person), (3) the Trustee of a Trust where the Alleged Incapacitated Person either created the Trust (as the grantor) or is a beneficiary of the Trust, (4) the Executor or Administrator of an estate where the Alleged Incapacitated Person is a beneficiary, (5) a person otherwise concerned with the welfare of the Alleged Incapacitated Person (such as the Department of Social Services), (6) the person with whom the Alleged Incapacitated Person resides, or (7) the Chief Executive Officer or Administrator of a facility where the Alleged Incapacitated Person is a patient or resident.
3. What do you have to prove in order for the Court to appoint a guardian?
Under New York's Mental Hygiene Law, the Court may appoint a guardian for a person if the Court determines (1) that the appointment is necessary to provide for the personal needs, or to manage the property and financial affairs, of the person, or both, and (2) that the person agrees to the appointment or that the person is incapacitated.
A determination of incapacity requires clear and convincing evidence that a person is likely to suffer harm because (1) he or she is unable to provide for his or her personal needs or unable to manage his or her property and financial affairs; and (2) he or she cannot adequately understand and appreciate the nature and consequences of such inability.
4. Do you need medical testimony at the hearing?
No, medical testimony is not required in order to obtain the appointment of a guardian.
5. If I commence a guardianship proceeding for my family member, will I need to testify at the hearing? If so, will my family member be present?
Yes. The Petitioner must be present at the guardianship hearing and provide testimony as to the functional limitations of the Alleged Incapacitated Person.
The Alleged Incapacitated Person has a right to be present at the hearing. In fact, if the Alleged Incapacitated Person cannot physically come or be brought to the courthouse, the hearing must be conducted where the Alleged Incapacitated Person resides, unless the Alleged Incapacitated Person is completely unable to participate at the hearing or no meaningful participation will result from his/her presence.
5. Will my family member have an attorney at the hearing?
It depends. In some specific situations, the Court will automatically appoint legal counsel for the Alleged Incapacitated Person. In other situations, the Court will only appoint a Court Evaluator, who essentially acts as the Court's own witness and conducts an investigation, including an interview of the Alleged Incapacitated Person. If the Alleged Incapacitated Person requests an attorney during that interview with the Court Evaluator, or at any other time during the proceeding, the Court will appoint an attorney for the Alleged Incapacitated Person. In addition, the Alleged Incapacitated Person, if capable, always has a right to retain his or her own counsel.
6. If I am appointed as the Property Management Guardian for my family member, am I personally responsible for the payment of his or her bills?
No. A property management guardian is given the authority to marshal the income and assets of the Incapacitated Person and to pay the bills of the Incapacitated Person with the funds belonging to the Incapacitated Person. These monies are typically kept in a guardianship bank account established in the name of the Incapacitated Person with the Social Security number of the Incapacitated Person. It is never expected that the liabilities of the Incapacitated Person are paid with the guardian's own personal funds.
7. If I am appointed as the guardian for my family member, is it a permanent appointment?
It can be, but it does not have to be. It is common for Courts to appoint a guardian for an indefinite period of time because it is likely that the condition of the Incapacitated Person will not improve. However, if the Incapacitated Person does improve, the Incapacitated Person may petition the Court to end the guardianship. If the person is able to show that he or she is able to care for and manage his or her own affairs, the judge may terminate the guardianship. Alternatively, if the guardian, for whatever reason, feels that he or she can no longer act as guardian, or that there are no funds left in the guardianship account to be managed, he or she may petition the Court for removal as guardian, and, if necessary, the appointment of a successor guardian.
8. If I commence a guardianship proceeding to bring help to my family member, am I responsible for paying the legal fees?
There is no definitive answer to this question. Initially, our office generally requires the Petitioner to pay us a retainer in order for us to move forward with the commencement of the proceeding. At the conclusion of the proceeding, an application can be made to the Court for a Court-ordered fee to be paid from the funds of the Incapacitated Person. If this application is granted, the guardian has the authority to pay the legals fees with the Incapacitated Person's funds and the retainer is refunded to the Petitioner. However, if the application for fees is denied, or if the Court does not allow for payment in full to the law firm, the Petitioner is responsible for either the full payment, or any shortfall between actual fees incurred and the Court-ordered fees.
It is also important to know that if a Petitioner is unsuccessful and a guardian is not appointed, the Court may direct that all legal fees be paid by the Petitioner.