Guardianship is a legal arrangement where a court gives a person the legal right to make decisions for another person who is unable to make decisions for themselves, such as a child, an incapacitated adult or someone who is developmentally disabled.
In New York State, a guardianship case is handled by the the Family Court, Supreme Court or Surrogate's Court depending on the type of guardianship asked for and the person over whom guardianship is requested.
Guardianship Terms
In a guardianship, one person has the legal right to make a decision for another person.
- Guardian: The guardian is the person appointed by the court who has the legal right to make decisions for another person. Anyone can apply to be a guardian if you are over the age of 18 and a legal resident or citizen of the United States. Someone with a criminal record may not be able to serve as a guardian. The judge makes the final decision of who can be the guardian.
- Ward: The ward is the person the guardian makes decisions for. The ward may not have the cognitive or communicative capacity to make decisions for themselves or be able to give informed consent for personal, medical or financial affairs. Sometimes the ward is called the guardianee.
Types of Guardianship
A guardian can have guardianship over different aspects of a ward's life:
- Guardian of the person: A guardian of the person can make life decisions for the ward like health care, education and welfare decisions.
- Guardian of the property: A guardian of the property handles decisions about the ward's money, investments and savings as directed by a judge. A guardian of the property must file an annual report about the property.
- Guardian of the person and property: This kind of guardian has responsibility of both the ward's life decisions and the ward's property.
- Guardian ad litem: A guardian ad litem is assigned by a judge to act for a person during a court case when they cannot defend their rights or protect their own interests. See the Guardians Ad Litem section below for more information.
Depending on who the ward is and how much help that person needs each, the guardianship case is filed in Family Court, Surrogate's Court or Supreme Court. See the Where to Start a Guardianship Case section below for more information.
Where to Start a Guardianship Case
In New York State, a guardianship case can be started in Supreme/County Court, Surrogate's Court, or Family Court. Where to go will depend on the age of the person who is said to need a guardian and that person's needs and circumstances. For example, if the person is:
Guardians Ad Litem
A guardian ad litem (GAL) is someone the judge assigns to help a person who cannot come to court or protect their rights and interests for a single case. A GAL can be appointed in cases involving children or incapacitated persons.
GALs are only responsible for helping a person resolve their court case. This means that they will go to court dates and coordinate with agencies and organizations to get the person services. They do not have any legal power to manage a person's personal affairs.
A GAL is an officer of the court and reports to the court what he or she is doing in the case. The judge might ask the GAL for a recommendation and what he or she thinks is best for the person. Most GALs are lawyers and have a duty to the person they are assigned to and to the court. Even if there is a GAL appointed to the case, a lawyer can also be hired.