** This article has been revised from its original version which was published on January…
What Powers Do Guardians Have?
**This article has been revised from its original version which was published on November 25, 2020.
New York state has three types of guardianship proceedings to appoint a guardian. The need for a guardian may arise in various situations, such as when parents have a special needs child, someone is caring for a disabled adult after an accident, or an elderly family member becomes incapacitated due to declining health. You can discuss guardianship needs with estate planning attorneys.
Three Guardianship Proceedings
Each guardianship is established by separate statutes as follows:
- Surrogate’s Court Procedure Act (SCPA) Article 17 – Guardianship of a Minor Child
- SCPA Article 17-A – Guardianship of an Adult with Developmental or Intellectual Disabilities
- Mental Hygiene Law Article 81 – Guardianship of an Incapacitated Adult
All three types of guardianship statutes appoint a guardian of the person, a guardian of the property, or combine a guardian of the person and property. Since a guardian may be appointed based on different laws, the authority granted by the court will vary depending on the type of guardianship proceeding.
All powers granted to a guardian in a guardianship proceeding can be divided into two basic categories:
- Powers to manage the personal needs of the individual
- Powers to manage the property of the individual
In general, the court may grant the guardian the power to make medical decisions, determine living arrangements, social settings, manage property, and handle financial affairs such as banking, investments, and expenses, including household and long-term care costs and taxes. It all depends on the specific situation and need for guardianship.
SCPA Article 17 and SCPA Article 17-A
In the case of a guardian appointed under both SCPA Article 17 and SCPA Article 17-A, the guardian’s authority covers all matters related to personal needs and property management within the statute. The guardian of the property is subject to the court’s oversight and must submit accountings of the property management annually or as the court demands.
MHL Article 81 Guardianship
In an MHL Article 81 Guardianship, the powers granted to a guardian of the person or property management are tailored to the specific needs of the incapacitated or disabled person. When granting powers to a guardian in this type of proceeding, the court is guided by a “least restrictive means” test to ensure rights outside of guardianship powers are retained by the incapacitated person. All powers must be specifically listed in an order and judgment.
For instance, if the order and judgment allow a guardian of the person to make decisions regarding the incapacitated person’s health care but does not specifically grant the authority to determine where they live, the incapacitated person can choose where they live.
It is crucial to consult with an experienced guardianship attorney to discuss the type of guardian and proceedings that are appropriate in your case to achieve the goals you have for your loved one. Whether you have a special needs child, care for a disabled adult, or an incapacitated parent, Russo Law Group, P.C can provide the right guidance.
If you need help with the guardianship process, please contact an estate planning attorney at Russo Law Group, P.C, with questions. Benefit from our estate administration experience, as well as caring and compassionate staff. Consult with experienced lawyers familiar with guardianship proceedings in New York. Be sure to take advantage of our free seminars and webinars to learn more about how Russo Law Group, P.C., may assist you with estate administration.
This Post Has 2 Comments
Can a court appointed Guardian in MI keep the person in a nursing home from having any visitors at all. My adult friend was deemed mentally incompetent & a Guardian was appointed. On psych medications, she is of sound mind. There is a large family estate pending, & she cannot make any decisions for herself. The a guardian has now placed, “NO VISITOR” for her at the nursing home. Is this legal to prevent any friends from visiting her.? She is not a threat to herself or others
Thank you for your email. Since your question is regarding a legal matter outside of New York State, you should contact an attorney licensed in that state to address your situation. Laws may vary from state to state.
Please Note: This reply is informational only and not legal advice. You should seek the services of an attorney for legal advice.
Janet Corsetti, Client Service Coordinator