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December 7, 2013

From the Office: Guardianship can be a complicated legal issue

Sometimes individuals cannot care for themselves. In New York, guardianship laws exist to empower others to take care of children and adults who need help to care for their persons and/or their property. This is the first of a two-part column that explores the issues and the law of guardianship in New York state.

These matters can be complex and the law is extremely detailed. This column is not intended to be a complete discussion of every circumstance that may arise or all aspects of the laws that apply. Please seek legal assistance to find out how the law applies to your specific situation. 

This portion of the article will focus on seeking guardianship for minors (those younger than 18 who are sometimes referred to by the legal term “infants”) and mentally retarded/developmentally disabled people (sometimes referred to as intellectually disabled persons). There is some overlap in these two areas because, of course, a child can also be intellectually disabled. However, for the purposes of this column, the two situations will be treated separately.

For those younger than 18 who live with a parent or parents, guardianships are unnecessary because parents are guardians simply by nature of being parents. Under certain circumstances, parents may execute a standby guardianship to name the person or people they wish to care for the child should the parent die or become incapacitated. However, if a child has been orphaned and the parent did not execute a standby guardianship or if neither of the parents is fit to have custody of the child, a third party may seek guardianship of that child. In many cases of parental unfitness, the Department of Social Services is involved in a child protective proceeding and that is the context in which those issues will be discussed.

In most situations, the third party will be a grandparent or other relative, but it is possible that it could be a non-relative. Petitions for guardianship are usually filed in either Family Court or Surrogate’s Court. The main difference is that the Family Court may only appoint guardians of the person but not of the property. A guardian of the person may make decisions about education, medical, physical custody and care of the child. However, a guardian of the person does not have the power to handle property such as life insurance benefits or a house left to the child of deceased parents. For that, a guardian of the property must be appointed, and such a guardianship is available only in Surrogate’s Court. A guardian of the person may receive recurring payments such as Social Security Survivors’ benefits on behalf of the child.

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