Guardianship for Incapacitated Adults

In New York, adults who can no longer manage their personal or financial affairs due to mental or physical impairment are considered legally incapacitated. Article 81 of New York’s Mental Hygiene Law provides courts with the authority to appoint guardians to assist such individuals. Duties typically assumed by guardians include:

• Payment of bills
• Arrangement of medical care
• Assistance with activities of daily living
• Home care management
• Prevention of financial and physical abuse
• Tax planning

The Appointment Process

Guardianship proceedings begin when a person files a court petition requesting the appointment of a guardian. After the petition is filed, the court appoints a court evaluator to conduct an investigation and prepare a report detailing the facts of the case. The court evaluator’s report typically includes an opinion as to whether the appointment of a guardian is necessary. Following the conclusion of the evaluator’s investigation, the court sets a hearing date.

At the hearing, in addition to the presentation of the court evaluator’s report, the petitioner presents evidence intended to demonstrate that the incapacitated person is incapable of managing certain personal or financial affairs. In addition, the hearing provides an opportunity for all those opposed to guardianship to present facts in opposition of the appointment of a guardian. Following the presentation of evidence, the court renders a decision on whether the appointment of a guardian is appropriate given the circumstances of the case.

The Selection Process

Often a family members will petition to be appointed guardian. Sometimes family members will disagree about who should be appointed. If the parties cannot agree on who should be appointed as guardian, the court will typically appoint an independent guardian from a list maintained by the court.

In order to serve as a guardian, the court requires that the individual selected for the role obtain a bond in an amount determined by the court. While there is no rule regarding the amount of the bond, courts frequently set an amount equal to the total value of the incapacitated adult’s assets plus two years’ income. An inability to obtain a bond sometimes results in the appointment of an independent guardian.

Guardian duties and responsibilities

While the duties specific to each individual guardianship may vary, there are certain duties and responsibilities that all guardians must fulfill by law. These include:

• Attendance at a 6-hour guardianship course
• Visitation with the incapacitated adult at least 4 times per year
• Filing of an initial report within 90 days of appointment as guardian
• Filing of an annual report by May 31 of each year
• Filing of a final report upon termination of guardianship

If a family member or loved one is currently suffering from mental or physical impairment, please consider contacting an experienced attorney to discuss your options. Please contact us for a free initial consultation at (518) 462-5601.