Guardianship in New York

The Courts define guardianship as the legal right for assigning someone else to make the legal decisions for someone who cannot. There are several reasons why an individual cannot make their own decisions, such as mental incapacity or minor incapacity. If you are considering guardianship, a divorce lawyer on Long Island can help. An experienced lawyer at Simonetti & Associates can assist in many areas of family law. The types of guardianship are for: a child, an incapacitated adult, or a developmentally disabled person.

Guardianship – of a Child

Defined:

A child is considered a minor when they are 17 years of age or younger. The guardian of the child can make the decisions that the parent would normally make. Some reasons for appointing a guardian to a child are the parent is:

• Deported
• In the military
• Too sick to care for the child

The Process:

“Petition for Appointed Guardian” paperwork must be filed before a hearing within Family or Surrogate’s Court. Both parents must consent, as well as any child over the age of 14 without any mental, physical, or developmental disability. In some cases, though, the Court may consider without the consent of one parent or child. Your divorce lawyer on Long Island can explain this further.

A guardian can be named in a will if a parent were to die, leaving any children with no one to take care of them.

The Court can assign a “standby guardian” if a parent is sick and in the future will not be able to make decisions for a child. The parent consents to when the guardianship will start. For example, a parent with a terminal illness may assign guardianship when he/she cannot take care of themselves anymore.

Guardianship – of An Incapacitated Adult

Defined:

An incapacitated person (AIP) cannot take care of themselves, property, or finances. The reason for the appointment is to provide personal needs. The person is incapacitated by:

• An inability to provide personal needs
• and does not understand the consequences of their inability to provide

The Process:

This guardianship case is brought to the Supreme Court or County Court under Article 81 of the Mental Hygiene Law. Since the person’s condition varies greatly, the process is specific and individualized. As a result, the limitations of the person will also vary. The courts will have an assessment to determine:

• Physical illness and prognosis
• A mental disability, substance dependence, or alcoholism
• Medications that may be affecting the person’s behavior

These factors will consider the amount of limitation. If you have any questions, contact your divorce lawyer on Long Island.

Guardianship – of a Developmentally Disabled Person

Defined:

A guardian can be appointed to someone who is “intellectually disabled or developmentally disabled” and is over the age of 18.

The Process

Surrogate’s Court can assign guardianship of a developmentally disabled person. The Court must have proof of the person’s disability by:

• One physician and one psychologist
• Two physicians

Schedule a FREE consultation with Divorce Lawyer on Long Island

If you would like to appoint guardianship, change guardianship, or have any questions, do not hesitate to make an appointment with a divorce lawyer on Long Island at Simonetti & Associates.