A guardianship may be appointed when an individual, sometimes referred to as a "ward", is no longer capable of caring for himself or herself, or his or her property. The guardian assumes the responsibility of decision-making for the incapacitated individual.
In general, there are several different types of guardianships. For the purposes of this blog, we will focus on three of these types. The first is a guardianship of the estate. In a scenario involving guardianship of the estate, the guardian is authorized to make decisions regarding the incapacitated person's "estate"; in other words, the guardian may decide what is to become of the ward's property or assets.
The second type of guardianship is known as a guardianship of the person. In contrast with a guardian of the estate, a guardian of the person is delegated the responsibility for making decisions regarding the ward's personal welfare. These responsibilities would include living situation or custody, personal and fiduciary relationships, and general activities, to name just a few.
Lastly, the third type of guardianship to discuss is plenary guardianship. A plenary guardianship combines the elements of the first two categories. Specifically, a plenary guardian is authorized to manage decision's regarding both the ward's assets and estate, and his or her personal affairs.
Specific to New York, there are two primary types of guardianships. The first is known as an Article 17-A guardianship. This serves to extend parental rights over a mentally disabled child past the age of 18. A 17-A guardian can be of the person, property, or both.
An Article 81 guardianship is more relevant to the field of elder law. This type of guardianship is used for an elderly or incapacitated individual who is no longer able to care for him or herself. Again, an Article 81 guardianship may fit any of the three categories listed above. Generally in Article 81 proceedings, the court will enumerate specific areas in which the guardian is authorized to make decisions for the ward.
Guardianships can be, and quite often are, tailored to meet the specific needs of the incapacitated individual. Additionally, although a guardian is appointed by the court, family of the individual normally have input as to whom the guardian will be. An experienced New York elder law attorney can help navigate this process to ensure that the needs of both the individual and family are met. If you feel that a loved one may no longer be able to handle his or her affairs, please contact the attorneys at Gallivan and Gallivan today to discuss what steps can be taken.