Guardianship

A Way to Protect the Vulnerable and Defenseless

The law has always provided a way to look out for those who cannot take care of themselves. In the Old Testament the God of Israel repeatedly commanded that His people protect the stranger, the widow, the orphan, the elderly, and anyone who is not able to defend themselves. This Biblical command is carried out in the law of guardians.

There are several ways for one person to be able to take care of the affairs of another in New York.

The easiest way to allow someone else to take care of the affairs of another is through a power of attorney. Though a power of attorney does not create a guardianship, it can frequently serve the same function as a court appointed guardian, and can be done without expensive legal proceedings.

Article 81 of the Mental Hygiene Law gives authority for courts to appoint guardians who were once called conservators. Depending on the authority granted by the appointing judge, the guardian may make personal and business decisions for another. A petition must be filed requesting the court to appoint an article 81 guardian, and all of the relatives of the person must be served with copies of the papers requesting the appointment. A lawyer is appointed to protect the rights of the person, and a court hearing is required even if there is no real opposition to the appointment. The judge must grant only enough powers to meet the needs at hand, and they must be the least restrictive means of accomplishing the guardianship. The court can require that guardian be bonded. The guardian remains responsible to file an annual accounting with the court to show that the monies have been properly spent, and an annual audit is conducted where the guardian must show paid bills and bank statements to a court appointed auditor. For an adult who is incompetent to handle his or her own affairs, it may be the only way to protect his property in the absence of proper pre-incompetency planning.

If a person has only money from social security and they cannot handle their affairs, a representative payee can be designated to handle the monies. This is done without court proceedings directly through the social security administration. As with other forms of guardianships, annual accountings are required.

If both of the parents of a minor child consent, a guardian for the child can be appointed through a simple proceeding in surrogate’s court. This is the best way to get a guardian for someone under the age of 18, but it requires the consent of both of the child’s parents.