News

New York Transfers of Guardianship

  • Jan 22 2018

Article 81 of New York’s Mental Hygiene Law provides courts in New York with the authority to appoint guardians. A guardian is an individual who is appointed by the court to ensure that the needs of a child or incapacitated adult are met. An adult who can no longer manage his or her personal affairs due to mental or physical impairment is considered to be legally incapacitated. When an individual is appointed as guardian of a child, he or she usually serves as that child’s primary caregiver. Duties typically assumed by guardians include:

  • Bill payment
  • Home care
  • Prevention of financial abuse
  • Prevention of physical abuse
  • Tax planning
  • Medical care arrangement
  • Assistance with activities of daily living

The Transfer Process

Article 83 of New York’s Mental Hygiene Law addresses jurisdictional and transfer issues relating to guardianship. Pursuant to the aforementioned law, a guardian in New York may petition the court to transfer his or her guardianship to another state. Notice of a petition to transfer guardianship must be given to all persons who would be entitled to notice of a petition requesting the appointment of a guardian in New York. Upon the filing of a petition for guardianship, the court may, on its own motion or upon request of the guardian of the child or incapacitated adult, hold a hearing on such a petition. The court shall issue an order provisionally granting a petition to transfer guardianship if it finds that the guardianship of the child or incapacitated adult will be accepted by the other state. In addition, when determining whether to transfer a guardianship from New York to another state, courts consider the following factors:

  1. Whether the child or incapacitated adult is physically located in or is reasonably expected to permanently move to the other state
  2. Whether any objections to the proposed transfer have been made or whether transfer to the new state would be contrary to the best interests of the child or incapacitated adult subject to the guardianship
  3. Whether the proposed plans for care of the child or incapacitated adult in the other state are reasonable and sufficient.

New York Legal Representation

At O’Connell and Aronowitz, our Elder Law team will work to ensure that your needs are met if you are unable to make personal and financial decisions due to incapacity. We routinely prepare specialized powers of attorney, healthcare proxies, and other advance directives in order to carry out your wishes and protect your best interests. In addition, if an advance plan has not been established on your behalf, we can assist you in applying for guardianship or the establishment of special needs trust. If you, a family member, or a loved one requires legal assistance due to mental or physical impairment, please contact the experienced elder law attorneys at O’Connell and Aronowitz for a free initial consultation.


Posted in: L.I.F.E. Group Blog

Locations

The culture of teamwork and collaboration at O’Connell and Aronowitz helps our three office locations assist clients in a myriad of legal disciplines and harness the talents of O’Connell and Aronowitz attorneys across New York State. We offer the experience, resources, and skills to help you protect your rights and your best interests.

Albany

54 State Street
Albany, NY 12207

tel: 518.462.5601
fax: 518.462.2670



Saratoga Springs

1 Court Street
Saratoga Springs, NY 12866

tel: 518.584.5205
fax: 518.584.5441