Sometimes a parent is not able to care for their child. It may be for a few weeks or months, or it may be permanent. When that happens, the guardianship process ensures that children and incapacitated adults have something in place to provide continuous care so that their welfare is not compromised.
Guardianship law in New York is very complex, here is what you need to know.
How does guardianship work in New York?
When a parent is unable to care for their child or if a person such as a friend or family member is concerned about the welfare of a child who is in the care of someone, they can request that the court appoint a guardian for the child. The person who has the concerns can ask to be appointed guardianship, or a judge may determine that a parent is not able to provide the care their child needs and appoint a family member or friend as the guardian.
Some of the times the court may appoint a guardian for a child include when the parent:
- Is serving in the military and is out of the country
- Is too ill to care for the child
- Is neglecting the child
- Has passed away
- Is in active substance abuse or is in rehab
- Is ill or mentally incapacitated to the point they are unable to make decisions for the child
- Has abandoned the child
Once the court appoints the guardian, that person has the same decision-making power that the parent does when it comes to making decisions regarding the child. Often the guardianship lasts until the child’s 18th birthday, but sometimes it can last until they reach 21 years old. The terms of the guardianship and its length depend on the circumstances of the case as well as the court that granted it which is either Family Court or Surrogate Court.
Anyone who is at least 18 years old can legally file a petition with the court to become a guardian. The petition asks the court to grant guardianship over the child to the person filing it. Then the judge decides whether to grant the request or not.
The court where the petition is filed is important because different circumstances in the child’s situation determine the court in which the case will be heard.
- Surrogate Court – The person filing for guardianship should file here if the child will be receiving property or money from life insurance, a parent or family member who has died, or a personal injury settlement
- Family Court – The person filing for guardianship should file here if the child will not be receiving property or money
What is legal guardianship for adults in New York State?
When an adult is incapacitated in some way, such as mentally or intellectually delayed, an adult guardianship may be used to provide them with the support they need. This can include when the incapacitated adult requires help to manage their financial affairs, property issues, or with making medical decisions. It can also be used when the person is not able to care for themselves.
This does not mean that all incapacitated adults are assigned guardians – not all need one. The law, Article 81 of the New York Mental Hygiene Law is very clear that guardianship is only for those who need it and only for those who need it.
Once the guardian is appointed, that person is not given authority over all aspects of the person’s life, but only in the areas where their assistance is needed to meet the specific, defined needs of the incapacitated adult.
Guardians can include:
- Any individual who is at least 18 years old
- A corporation
- A public agency
A person who knows the incapacitated person, such as the trustee of a trust or executor of an estate or anyone who is concerned about the person’s welfare can initiate the guardianship case. Additionally, the incapacitated person can advocate for themselves and request a guardian.
After the petition for guardianship has been filed with the court, a hearing will be set to determine whether or not the person is indeed incapacitated and if they required a guardian. If the person is found to be incapacitated then a guardian is appointed.
How do I get legal guardianship in NY?
An individual who is seeking to get legal guardianship of a child or incapacitated adult should first talk to an attorney who can help guide them as they build their case. While an attorney is not required to file the petition, it is highly recommended.
The first step in the process is to file a petition with the court. That petition is a legal document that lays out the person’s case, and why they think the person named requires a guardian. It then asks that a guardian be appointed – usually that they be appointed as a guardian.
In this crucial part of the process, the person’s case needs to be very strong. It must provide the judge with enough evidence to show why a guardian is appropriate. An experienced, knowledgeable family law attorney can work with the person as they navigate the guardianship process and help ensure that the case has the best possible outcome.
Do guardians get paid in NY?
Some guardians do get paid, it depends on the case and the terms of the guardianship that the court has laid out. Foster parents are guardians and they do receive payment for their service. Professional and public guardians are paid for their services which include fees and expenses. The amount is typically determined by the court although foster parents do have a payment scale that assigns a monthly amount for each child that they care for.
What is the difference between guardianship and custody in NY?
Typically, custody refers to a parent caring for their own child while a legal guardianship refers to someone else (not a biological parent) whom the court has granted the right to care for a child. It is important to note that just because someone else is granted guardianship over a child it does not mean that the child’s parents have lost their rights or that the court has revoked their custody. Although sometimes guardianship can grant custody.
What is temporary guardianship in New York?
A standby guardian has temporary guardianship of a child. This person is granted temporary authority to care for a minor child who is not their biological child while that child’s parent or legal guardian is still living.
A standby guardian serves as a backup in case something happens and the parent or legal guardian is unable to fulfill their obligations for some reason. This ensures that the child still has access to immediate care from a trusted individual.
When the standby guardian is appointed it does not affect the rights of the legal guardian or parent. They retain their full parental, guardianship, custodial, or caretaker rights. Further, they have the authority to, at any time, revoke or cancel the standby guardianship.
Some cases where a standby guardian may be needed include:
- The parent has been declared by a doctor to have an incapacity or mental impairment that would affect their ability to care for the child or make decisions regarding the child’s welfare
- The parent is detained, arrested, deported, incarcerated, or believes that they will be
- The parent, legal custodian, legal guardian, or primary caretaker works or is a volunteer in a healthcare facility and has reason to believe that they have been exposed to COVID-19
- A doctor has declared the parent debilitated due to an illness that leaves them or will leave them unable to care for the child in the future
The parent or guardian completes a Designation of Standby Guardian form and signs it. Two adults must also sign the form as witnesses and cannot be the standby guardian. The parent must then file the Petition for Appointment of a Standby Guardian form in either the Family Court or Surrogate Court.
What happens if there is no family member or friend to be a guardian?
Because New York does not have a statewide public guardian system like many other states do, there is a gap in the services when a person requires a guardian. The court often attempts to fill this gap by appointing community organizations or private attorneys to act as guardians. If no other guardian is available the local Commissioners of Social Services has the authorization to make appointments.
In the end, Adult Protective Services has a very limited role in the guardianship process and many professionals have a tendency to avoid or be adverse to providing guardianship services. There is not much incentive for them to participate. However, there are special interest groups and guardianship advocates like Project Guardianship that can step up to fill that gap when there is no one to help.
Guardianship is an important matter whether you are considering petitioning for guardianship of a child or incapacitated adult or if your child is being appointed a guardian. You need a family law attorney who understands the law and knows how to navigate the complex family court system.
The Litvak Law Firm has the talent, experience, and knowledge necessary to handle your case with professionalism while ensuring that your rights are protected and you have the best possible outcome of your case. Call today 718-989-2908 and make an appointment for your consultation. Don’t try to go through this alone. You don’t have to.