What Is Guardianship?

When quality of life is at risk, guardians can help

Guardianship usually begins at a point in a person’s life when multiple and complex issues related to their health, finances, and housing have put them at risk of harm and/or a diminished quality of life.

The need for guardianship is increasing. There are rising numbers of older adults and the aging population is also becoming poorer over time. Diagnosis of dementia and Alzheimer’s is on the rise. More guardians are also being appointed for young adults and middle-aged persons with developmental disabilities and mental health diagnoses under Article 81 of New York State’s Mental Hygiene Law.

Project Guardianship serves as guardian under Article 81. Article 81 permits appointment of a guardian for the purposes of handling personal needs for an individual, managing property and finances, or both.  

For a guardian to be appointed, a petition must be made to a court and a judge must determine that a guardian is necessary — that is, the person will be unsafe and at risk of going without food, clothing, or shelter, or is at risk of financial loss. Oftentimes, it is a family member, a hospital or nursing home, a landlord, or Adult Protective Services who will make a petition to the courts.

For those who do not agree to having a guardian, the court will decide if they are “incapacitated” as defined by Article 81, meaning that they are at risk of harm because they are unable to provide for themselves and do not understand the risk of their limitations. A court will evaluate whether a person is able to, among other things, cook, eat, walk, dress, shop, travel, and manage money without assistance — and can protect themselves from harm and abuse.

While guardianship is a legal tool, it is so much more than just the provision of legal services. People enter into guardianship with a wide variety of compounding and complicated issues and often when their mental, cognitive, and/or physical health is in rapid decline. Guardianship oversight and care span complex responsibilities such as coordination of healthcare, housing, finances, property, benefits and entitlements, end-of-life care, and medical decision-making.

See Capacity and Incapacity

See National Guardianship Association Website

Court processes

Under Article 81, once a court determines that a guardianship is necessary, it will issue a court order, known as an “Order and Judgment” (O&J). If possible, the courts will appoint a suitable family member or friend, and if not, the court may look to individual private attorneys and nonprofit agencies such as Project Guardianship to serve.

A guardian must abide by the powers and authority given to them by the O&J. The court will evaluate a person’s abilities and needs, and the O&J is crafted to provide the guardian with authority and powers in accordance with those needs.

Some people might need a guardian to help them manage money but are able to make medical decisions, travel independently, and maintain a safe living environment on their own. Others might be capable of managing their own money but need assistance managing their home care. Each O&J is different because each person is different.

A court’s oversight will continue for the life of the guardianship. A guardian is required to file periodic reports to the court including a detailed report each year. The annual report will include a list of all the financial transactions made on an individuals’ behalf, social and personal details of their lives, and a current medical update from a doctor.

The New York State Article 81 statute endeavors to limit restrictions on a person’s autonomy and independence while also making sure that an individual is protected from abuse, self-harm, and mismanaged affairs. The statute also requires that guardianship be the means of last resort and that all other options for protecting and caring for the person have been exhausted.

Initial and Annual Guardian Reports

All guardians must regularly report to the court. These reports give the court information about the individual under guardianship — and how a guardian is managing their affairs, what are their plans for care and oversight, how much money the individual has, and how their money is being spent. The reports provide a good basis to evaluate if the guardian is adequately serving an individual and is well cared for. The reports must be written in a court-approved form.

The Initial Report (aka the “90 Day Report”) is the first report that must be submitted within 90 days after the guardian receives their commission. This report is meant to be a snapshot of the person’s situation at the beginning of the guardianship.

See Initial Report of Guardian, New York Template

The Annual Report, sometimes called the “Annual Accounting,” is always due in May and covers the previous calendar year from January 1 through December 31. During the period between the Initial Report and the Annual Report the guardian will continue to care for the individual according to the judge’s orders and the information and plans that were outlined in the Initial Report.

See Annual Report of Guardian, New York, Template (2017)