One important value that people of all ages throughout our society hold (especially our seniors), is independence. Independence is engrained in our society and is arguably the one true common factor throughout our nation. But our definition of independence extends far beyond the broader concept of political self-governance to the desire for every individual to be able to make his or her own decisions and for our wishes to be honored. Unfortunately, our individual independence can be limited through the loss of one’s capacity. For those individuals who do not have advance directives, the inability to make personal and financial decisions can result in the need for a court-appointed guardian. The process of having a guardian appointed can be complicated and costly.
For those individuals who do not have advance directives, the inability to make personal and financial decisions can result in the need for a court-appointed guardian.
There are 3 basic types of Guardianships in New York:
- Article 81 Guardianship
An Article 81 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. In some cases, the limitation may be the result of an unexpected illness, sudden accident or a slow progressive disease. Learn More
- Article 17A Guardianship
Often, parents of children with special needs, whether developmentally disabled or intellectually disabled, assume they may continue to make decisions of their child’s behalf even after the child reaches the age of majority or 18 years of age. However, once the child reaches the age of majority, no other person has the authority to make medical, personal and/or financial decisions for that individual. In order to legally be able to make decisions for an adult under a developmental disability, a guardianship proceeding is required. Learn More
- Article 17 Guardianship (for a minor)
In instances where a minor’s property is valued at more than $10,000, a court must oversee the management of the assets. This usually occurs when a minor has either inherited funds or property after a loved one deceases or when a personal injury lawsuit is settled. The objective of the law is to protect the gained assets of the minor throughout childhood. After reaching the age of majority, the assets are turned-over to the child.
A guardian can make a broad range of financial decisions on behalf of an incapacitated person. The guardian is usually a family member or close friend, who can be given the power to:
- collect and invest the person’s assets
- expend assets and income on any of the person’s needs
- sell the person’s residence
- protect the person’s assets in such a way as to maximize government benefits (such as SSI and Medicaid)
- make gifts of the person’s assets to his or her loved ones
Special Needs Trusts
A guardian can set up a Special Needs Trust. The trust will allow a trustee to hold the person’s assets for his or her benefit without compromising Medicaid eligibility, subject to certain conditions. This is a vital planning tool for all incapacitated persons under age 65 who have assets.
A guardian can also make important personal decisions for the incapacitated person regarding routine and major medical and dental treatment; living arrangements; educational and training opportunities, and the application for government benefits including SSI and Medicaid.
How to Become a Guardian
Your attorney petitions the appropriate court and asks that the court appoint you (or, if you wish, someone else) as guardian. The court decides whether or not a guardian is needed, who should be appointed, and what financial and/or personal decision-making powers the guardian should have. Once appointed, the guardian can begin to act on behalf of the incapacitated person.
Benefits of Guardianship
- Protection of assets from loss or waste
- Access to money to make necessary expenditures
- Investment of the assets according to a prudent investment plan
- Medicaid planning
- Special Needs Trusts
- Sale of residence
- Medical and dental treatment decision-making
- Living arrangements
- Health care decisions
- Tax and estate planning
- Creation of living trusts