When Is Guardianship Required?
There are three times in which guardianship is required. The first is if a child, under 18 years old, is to receive an outright inheritance or an outright payment of money from other sources. Legally, any persons under 18 years of age is incapable of owning anything, including money, and this is when these types of guardianships are needed. A proceeding to have this type of guardian appointed is filed in the Surrogate’s Court in the County where the child resides. With these types of guardianships, after the child turns 18, the guardianship is dissolved, and the child receives the funds held by the guardian outright. In addition to having a guardian appointed to manage a minor’s child money, the Surrogate’s Court also has the authority to appoint someone who will care for a minor child. These proceedings are typical when a child is orphaned and a guardian is needed to ensure the child is raised in a loving household. As with a guardianship to manage a minor child’s assets, once the child turns 18, the guardianship sought to care for a minor child is dissolved.
With the above noted guardianships, a parent could nominate a guardian to manage a minor child’s finances and care for the child during minority by designating the desired guardian in the parent’s Last Will and Testament. This is often done by a single parent when their former spouse has substance abuse problems or other issues. This is also often done by married couples as a precaution to ensure their children are cared for by individuals they select – they do not wish to leave this decision to a Court. It is not unusual that a married couple would prefer that children are carried for by one set of grandparents, and not the other grandparents, and this may drive parents to nominate the desired grandparents as guardians for their children.
Note that the Court will often respect and appoint the guardians nominated in parent’s Last Will and Testament; however, when one parent survives the deceased parent, even a clear expression in the deceased parent’s Last Will and Testament as to whom the guardian should be may not be given effect, as the law prefers that children be raised by their parent or parents absent a clear showing that the surviving parent is unfit.
It should also be noted that if a guardian is appointed to control the minor child’s assets, the assets are typically held jointly with the Surrogate’s Court, and can only be released upon an application to the Court seeking payment /distribution of these funds. In addition, any guardian for a minor child’s property must account to the Court annually and inform the Court of what transpired in the previous year. While this can be cumbersome and time consuming, the Court requires this to ensure the minor child’s assets are not wasted.
The second time that guardianship is required is when a child is either intellectually or developmentally disabled and the child cannot sufficiently provide for themselves. These types of guardianships are typically commended just before the child turns 18 and are brought to ensure a guardian is appointed to care for and manage the child’s assets indefinitely, even past the child’s 18th birthday. While these types of guardianships are typically commended before the disabled child turns 18, they can be brought at any time, provided the child was disabled on or before the child’s 22nd birthday.
Guardianships for intellectually/developmentally disabled children are typically commended in the Surrogate’s Court in the County where the disabled child resides, though these guardianship proceedings can be brought in the Supreme Court in the County where the disabled child resides. As indicated above, these types of guardianships continue indefinitely unless the child recovers and/or learns to cope with the disability so that the child can manage his/her own assets and care for himself/herself. As with all types of guardianships, the guardian for an intellectually or developmentally disabled child must account to the Court annually and inform the Court what transpired over the past year.
The third and final type of guardianship is when a child seeks guardianship of an ill parent who can no longer mange his/her finances and/or care for himself/herself. These guardianship proceeding are brought in the Supreme Court in the County where the ill parent resides. Because these types of guardianship are quite common, the Supreme Court has a special department committed to these guardianship filings and proceedings. Once this type of guardianship is commenced, the Court will appoint an individual, selected by the Court, to meet with the ill parent, the children of the parent and anyone else they deem advisable, and investigate the claims made in the guardianship filings. This person, called the Court Evaluator, will reduce their findings to a writing and file the written report with the Court to inform the Court if they agree that a guardian should be appointed. After this is complete, the Court will hold a hearing, typically within 28 days of child commencing the guardianship proceeding, and the Court will either appoint a guardian for the ill parent or decline to do so. It should be noted that these types of guardianship proceedings are very expensive and can be avoided if the parent has the legal capacity needed to execute a Power of Attorney and Health Care Proxy. Also, as with all types of guardianships, the appointed guardian will have to report to the Court annually and inform the Court as to what transpired in the previous year.
The Nursing Home Wants To Be My Parent’s Guardian. What should I Do?
This is something that comes as a surprise to many clients – they receive Court documents informing them that the nursing home, where their parent is residing, is petitioning to be their parent’s guardian. Having a nursing home commence a guardianship proceeding for a parent is not uncommon, and they are typically brought by the nursing home when a parent has not secured Medicaid benefits or otherwise secured payment of the nursing home’s bills. Unfortunately, when a nursing home brings a guardianship proceeding for a parent, their primary goal is securing payment for their services. However, even when a nursing home commences a guardianship proceeding, they are typically willing to let the children serve as the parent’s guardian and this option should be fully explored.
How Do I Become An Elderly Parent’s Guardian?
In order to become an elderly parent’s guardian, there are a number of things that need to be done. As a preliminary matter, the elderly parent, for whom guardianship is sought, must lacks the legal capacity to make well-informed decisions concerning their personal needs and finances. Furthermore, these ill-informed decisions must clearly demonstrate that the elderly parent is unable to appreciate or understand the actions taken. It is not enough that the elderly parent is making decisions that are disagreeable; instead, the elderly parent’s decisions must be so poorly informed that the decisions pose a danger to the elderly parent’s wellbeing, finances or other persons in the elderly person’s community. For example, if the elderly parent is allowing someone else to reside in their home, and the people residing in the home are not taking advantage of the elderly parent, this is not likely sufficient to have a guardian appointed for the elderly parent. If, however, the person living with the elderly parent is stealing or otherwise taking advantage of the elderly parent, this would present a situation where a guardianship may be appropriate. Another example of when a guardianship is or is not appropriate is when an elderly parent is suffering from dementia and has exhibited signs of hoarding. While hoarding alone is not typically sufficient for the appointment of a guardian, if the hoarding is so extreme that the elderly parent can no longer move around their home, or presents a very real danger to the elderly parent’s welfare, then, in such instances, a guardianship may be appropriate. While it can be very difficult to determine when a guardianship is needed, the law tends to favour allowing and elderly parent to live independently, and without a guardian, and the Court is typically only willing to appoint a guardian for an elderly parent when the child can demonstrate, by clear and convincing evidence, that guardian is needed.
Another import factor to consider before commencing a guardianship proceeding is has the elderly parent has executed a Power of Attorney and/or a Health Care Proxy. If a valid Power of Attorney and/or Health Care Proxy exists, a guardianship may not be necessary. Even if the Power of Attorney and/or Health Care Proxy is not deemed sufficient to protect the elderly parent, the Court must be informed that these documents were located, and the existence of these documents will weigh heavily when the Court decides whether or not a guardianship appointment is needed.
After considering the above, if a child feels the elderly parent requires a guardian, the next step should be contacting an attorney knowledgeable in guardianship proceedings. The documents that must be filed with the Court to obtain guardianship are complex, and while it is possible to file without an attorney, it is almost always advisable to have an attorney assist with the preparation of required Court filings. Also, because these types of guardianship always require a formal court hearing, retaining an experienced guardianship attorney is usually in the child’s best interest.
The papers that must be filed with the Court to commence the guardianship proceeding, which are filed in the Supreme Court in the County where the elderly parent resides, include: a guardianship petition, an order to show cause, a request for judicial intervention, notice of guardianship, and frequently many other documents.
In order for the guardianship petition to be sufficient, the guardianship petition must make specific allegations of actions taken by the elderly parent that demonstrate that the elderly parent lacks legal capacity, cannot understand and appreciate their actions, are a danger to themselves and/or others and adequately demonstrate that the proposed guardian is the person best suited to serve as guardian for the elderly parent. The petition must also recite what assets the elderly parent has, what advance planning the elderly parent has done, who the family members of the parent are and a listing of what guardianship power are being sought by the child, which must be individually tailored to suit the allegations of incapacity.
If the guardianship petition and other required filings are approved, the judge who will decide if a guardianship is appropriate will sign the submitted order to show cause and require that the order to show cause be served on necessary family members. People who are required to be served with the order to show cause will be invited to participate in the guardianship proceeding and hearing, and have the ability to request that they be appointed as the guardian for the elderly parent instead of the person petitioning for guardianship. Especially when there is family discord, persons served with the order to show cause may cross-petition for guardianship and/or may seek to have the guardianship dismissed. If another family member wishes to contest the guardianship, the hearing will proceed as a litigated matter, and a number of complexities arise.
Also, in the order to show cause, the Court will appoint a Court Evaluator to meet with the elderly parent, the person brining the petition and other family members. The Court Evaluator’s role is to act as the “eyes and ears of the Court” and report to the judge whether they think the guardianship is warranted, among other things. In some instances, the signed order to show cause will appoint an attorney for the elderly parent to protect their interest in the proceeding. If an attorney is appointed for an elderly parent, this attorney will meet with the elderly parent and determine if the elderly parent wishes to contest the guardianship. If the elderly parent wishes to contest the guardianship, this attorney should do all within their power to ensure the guardianship petition is dismissed so the elderly parent can live independently, without a guardian.
After the Court Evaluator has conducted their review and filed their report with the Court, and after the attorney for the elderly parent has determined if the elderly parent wishes to contest the guardianship, a hearing will be scheduled and all parties to the guardianship proceeding will have the opportunity to present their case.
If the Court appoints a guardian for the elderly parent, the petitioner must then file several documents with the Court for formalize their appointment as guardian. Once this is done, the guardian must marshal the elderly parent’s assets and income and account to the Court, on an annual basis, detailing what the guardian did to protect the elderly parent in the prior year.
As can be seen, obtaining a guardianship for a parent is an extremely complicated affair.