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In the state of New York, adults with functional limitations fall under Article 81 for guardianship. This type of guardianship is appropriate for an individual who, at one time, was competent but not suffers from either functional or cognitive limitations that limit their ability to complete daily activities without help from others.

The Process for Obtaining Article 81 Guardianship in New York

A guardianship proceeding is commenced by the completion and submission of an Order to Show Cause and a petition.  These documents set forth the details of why guardianship is necessary for the alleged incapacitated person.

At the hearing, the petitioner testifies the need for guardianship, which they desire to be appointed as a guardian and the powers requested. The court Evaluator testifies as to his/her findings and recommendations. Other witnesses may also be called. The court typically states its conclusions at the end of the hearing in a Bench Decision.

Understanding the steps after Guardianship is Determined

Once the judge determines that the AIP is incapacitated or is a person in need of a guardian, a proposed Order and Judgment is prepared by the petitioner’s attorney and filed with the court for judicial approval.  The Order and Judgment set forth the guardian(s), the powers granted, and the compensation due to the Court Evaluator for his/her services, which will be paid from the incapacitated person’s (“IP”) assets or as otherwise directed by the court.  A signed Order and Judgment is necessary for the appointment of the guardian.

The guardian may be required to post and file a bond with the court.  The guardian will also have to sign and file certain documents for their appointment, including a Consent to Act, Oath and Designation, and other court forms.  Once all documents have been filed, the County Clerk will issue a Certified Commission to Guardian, which enables the guardian to act.

The Responsibilities of an Appointed New York Guardian

The court will require the guardian to take a class, offered through the Office of Court Administration, to teach the New York guardian about his/her duties and responsibilities.

The guardian will have to file an Initial Report within ninety (90) days of being commissioned to report on the initial assets of the guardianship and the IP’s well-being.  The court appoints a Court Examiner who will review the required Guardianship accountings.

Further, the guardian will need to file an Annual Report in May, setting forth his or her acts as a guardian for the preceding year ending December 31st.  The report accounts for the guardianship assets and the IP’s well-being. 

Russo Law Group, P.C. helps you and your loved ones handle Estate Planning, Elder Law, Special Needs Planning, Medicaid Planning, Trust & Estate, Guardianship, Small Business Planning, and Real Estate Law. We welcome you to contact our Garden City, Lido Beach, or Islandia, New York law offices to learn more about how we can help address your guardianship legal matters.

If you have questions or concerns about Guardianship issues, please don’t hesitate to contact the Guardianship Attorneys with Russo Law Group, P.C.

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