New York State has several “guardian of last resort” schemes for individuals who need a guardian when there is no family member or friend available to serve.
In New York, there is no statewide public guardian system, as there is in other states. Instead, judges generally seek to appoint private attorneys or community organizations to be guardians, and local Commissioners of Social Services are authorized for appointments if no other guardian can be found.
The lack of a public guardian system, along with the limited role of Adult Protective Services (APS) and disincentives for professionals to serve has created a gap in the provision of guardianship services in New York. Some guardianship advocates support a statewide public guardianship system with flexibility to meet local needs to fill the gap.
Role of Adult Protective Services and Community Guardian Programs
APS is a government program, under the oversight of the New York State Office of Children and Family Services, that investigates referrals of abuse, neglect, and financial exploitation for adults who live in the community. APS occupies multiple roles within New York's guardianship system. Sometimes it is APS that will petition for the appointment of a guardian for a person receiving APS services.
In New York City, increasingly, for these APS-petitioned cases, it is APS that will contract with three New York City agencies that provide Community Guardian Program services and will accept guardian appointments. Community Guardians must relinquish a case when a person enters a nursing home or similar residential facility, leaving a serious and sometimes life-threatening void where there is no one to make health and personal decisions and oversee facility care.
Lastly, APS itself may serve as the guardian (which is typically the case outside of New York City), upon an appointment by the local Commissioner of Social Services.
Professional Guardians and Attorneys
When APS is not the petitioner, and Community Guardians are not contracted to serve as guardians, other guardians (including predominantly private attorneys from what is called the court’s “Part 36” list) may be appointed and compensated for their services out of the income and assets of the person for whom they are guardian. Such appointment of an attorney may leave a gap in the provision of social work skills that are needed.
Also, the number of professionals on the Part 36 list willing to serve as guardians has declined. There are established limits to the payment mechanisms under which they will be paid, and many cannot afford to take a no-fee/low-fee case because of the enormous complexity and amount of time that will be required. Judges cannot rely on the list to fully meet the growing number of cases.
This leaves many individuals, particularly those who are low-income and without assets, family, or friends to care for them, without adequate care, and with judges struggling to find guardians to oversee their care.
Other Non-profit Agencies
New York has scattered not-for-profit agencies that take guardianship cases, generally using meager funds from the estates or small Medicaid-exempt stipends. Such agencies are vastly underfunded to serve as guardian and do not exist throughout the state.
Lay and Family Guardians
See Lays and Family Guardians section of Need for Guardianship
Project Guardianship accepts appointments from the courts regardless of a person’s income and assets, and potential limitations in their ability to pay for services.
Project Guardianship also advocates that funding be made available for additional nonprofits to serve, especially those with a multidisciplinary team model, and that increased compensation be available for guardians in low-fee/no-fee cases, to help staunch the unmet need throughout New York State.