Guardianship and Stand-By Guardianship Proceedings

Sometimes, even the best estate plan cannot avoid the need for court intervention. When individuals face a long-term illness or disability rendering them unable to care for themselves or their children, a Guardianship or Standby-Guardianship proceeding may be the only answer.

Guardianship Proceedings: A guardianship proceeding, also known as an “Article 81” proceeding (named for the New York statute governing the proceeding) is a formal proceeding commenced before the Supreme Court of the New York County in which the incapacitated individual resides. Under this proceeding, one or more individuals petition the court to be named Guardian of an incapacitated adult. A person can be appointed Guardian over the incapacitated adult’s person or property, or both.  The proceeding begins when the person seeking to be named Guardian files a petition alleging that the other individual no longer has capacity to make decisions and care for him or herself.  Due to the urgency ordinarily occasioned by such situations, the first court appearance is not more than 30 days from the date the petition is filed, and normally, unless the petition is contested, the court will grant at least preliminary letters of Guardianship at the first Court appearance.

As part of a Guardianship proceeding, the court will also appoint a Court Evaluator to make an independent investigation of the situation—including by interviewing the person alleged to be incapacitated, the person’s care takers, family members, doctors and the petitioner—and based on that investigation, Court Evaluators file their own independent recommendation to the court regarding the best interest of the individual. In certain circumstances, the court may elect to appoint a separate attorney for the incapacitated person, and may also order additional medical examinations.

Once an individual has been appointed to be the Guardian of another, it is a very serious responsibility and creates a fiduciary relationship. The Guardian will have periodic accounting and reporting obligations to the court, and in the event of any malfeasance by the Guardian, the court can hold the Guardian personally responsible. Depending on the financial circumstances of the incapacitated person and powers granted to the Guardian, the court may sometimes also require Guardians to post a bond, to ensure their compliance with their obligations.

Standy-by Guardianship Proceedings: Stand-by Guardianship proceedings are similar to a Guardianship Proceeding, except that these proceedings are commenced when the need for a Guardian or replacement Guardian is imminent, but not yet ripe. Cases where a Stand-By Guardianship proceeding might be appropriate are where parents or Guardians are either elderly or ill, and they know that they will not likely be able to act as Guardian for the full term of the incapacitated person’s life. In this proceeding the court goes through the full Guardianship process in advance, so that when the current Guardian is no longer able to serve, the new Guardian can immediately step in—without a lapse in care.

New York Guardianship Attorney Apryl Hand and the capable and caring Trusts and Estates Lawyers at Lewis & Hand, LLP have helped many clients through the difficult and sometimes emotional process of Guardianship and Stand-By Guardianship Proceedings, including ongoing representation of Guardians after appointment.  If you think someone you know or love is in need of a Guardian and you want to know more about the process, or you are interested in becoming their Guardian yourself, please give us a call or contact us to set up a consultation and discuss whether a Guardianship proceeding is the appropriate next step.