While the concepts of guardianship and custody may seem similar on the surface, they have very distinct meanings in legal terms. Though many clients may not associate guardianship with estate planning, an estate planning attorney can tell you that guardianships are necessary to plan for care of a minor child if a parent passes away before the child reaches adulthood. Otherwise, a POA is preferable.
The state of New York recognizes three kinds of guardianship: guardianship for a minor, special needs adult guardianship, and guardianship for elderly or incapacitated adults who can no longer manage financial and health decisions. Read on as the legal team at Sheryll Law, P.C. of Riverhead, New York, provides some answers.
What Is Guardianship?
A guardian is a court-appointed individual who can make important legal and life decisions for someone who cannot make these decisions for themselves. Guardianship can be permanent or temporary, depending on the dependent’s needs and situation. For example, a guardian may assist with the decision-making of a minor while the parent is unable to do so. The guardianship will cease as soon as the parent recovers and can resume their custodial duties.
Types of Guardianship
Guardianship for a Minor
Known as Article 17 guardianship, this type of guardianship assigns a legal guardian to any child under the age of 18 whose parent cannot care for them. Common reasons for seeking guardianship include the parent’s death or incapacity or, alternatively, if they have left the country.
A parent can appoint a guardian in their will in case of their death. If a Judge in the Surrogate’s Court or Family Court approves the appointment, this individual will become the minor’s legal guardian. Guardians can also be responsible for property, such as when a minor obtains a large sum of money from an inheritance or civil settlement. At this point, the court can appoint a “guardian of the property” who, in conjunction with the court, will control the funds until the minor reaches adulthood.
Guardianship for an Intellectually or Developmentally Disabled Adult
The State of New York assumes that any individual who reaches the age of 18 is legally competent to make financial and personal decisions. However, an exclusion applies to an adult with intellectual or developmental difficulties who is incapable of making their own choices.
In this case, Article 17-A guardianship applies, which can be guardianship over the individual, their property, or both. The court requires certification from two doctors, or a physician and psychologist, to determine that an individual cannot make their own decisions before assigning a guardian.
The terms of Article 17-A guardianship are broad and cover most of the decisions a parent would make for a child, such as those concerning finances, education, housing, and medical treatment.
Guardianship for an Incapacitated Adult
An Article 81 guardianship applies to an individual who was previously capable of making their own decisions but has become incapacitated due to illness or injury. If a person never executed a POA or does not have the capacity to execute a POA in their estate planning documents, a prospective guardian will need to apply to care for the incapacitated adult.
The New York Supreme Court governs the appointments of Article 81 guardians and ensures that the terms are individualized and specific regarding the decisions the guardian can make, and which rights remain with the incapacitated individual. For example, in most cases, a guardian may not revoke their ward’s revocable trust, while conservatorships are a type of guardianship where the guardian is limited to making financial decisions.
The ideal arrangement is for a person to handle estate planning early, including naming a durable POA and healthcare proxy. As individuals age, they may benefit from handing over power of attorney for financial decisions or appointing a healthcare proxy for medical decisions. A guardianship is often a last-resort measure to appoint a caretaker for medical and financial decisions after a person is incapacitated.
Identifying when to seek guardianship for an incapacitated adult can be challenging for estate planning lawyers, but it is an essential component of any estate plan. An experienced estate planning lawyer will provide their client with alternatives and considerations for many different situations to ensure that their best interests remain at the forefront, regardless of circumstances.
How Does Guardianship Differ from Custody?
While both guardianships and custody allow the guardian or custodian to make decisions on behalf of their ward, there are several differences between the two concepts.
Guardianship may be temporary or limited in scope, according to the case, while custody is permanent. Also, parents remain a child’s legal parents even if the child has an appointed guardian and may petition the court to become the child’s legal guardian relatively easily. In contrast, changing custody requires evidence of a substantial change in circumstances and can be very difficult to achieve.
About Jay P. Sheryll, Esq.
Jay and his team help their clients leave a legacy and achieve the peace of mind of knowing that they can protect their families if something happens to them. Sheryll Law, P.C. understands that their clients have worked hard to build their legacy. It is their pleasure to help them leave their money to their loved ones according to their wishes. Having observed other firms haphazardly draft wills and throw together some powers-of-attorney without any thought to the planning aspect, Jay realized he could fulfill a need for East End Long Island clients.
Contact Sheryll Law, P.C. to Discuss Guardianship in New York
Sheryll Law, P.C. helps clients designate guardians for their minor children and obtain special needs and elder law guardianships. Our experienced estate planning attorneys work diligently to ensure that we establish a proper estate plan or trust that addresses each client’s specific circumstances in the East End of Long Island. Ready to secure your future and the future of your loved ones? Contact us at (631) 506-8440 or fill out our form to schedule a consultation.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
Sheryll Law, P.C.
633 East Main Street, Suite 2
Riverhead, NY 11901
(631) 506-8440
https://sheryll-law.com/
