A guardian, in the context of the law, is someone who has been entrusted with caring for the well-being of another person (known as a ward) who is incapable of caring for themselves. Often, this means caring for a minor child, but a legal guardian may also be appointed to oversee the care of an elderly person who lacks the capacity to handle their own affairs. A guardian may also be appointed to watch over an adult with a physical or psychological disability that makes it difficult for them to care for themselves.
Aside from arranging for the physical well-being of their ward, such as ensuring they have food and shelter, a guardian also handles their ward’s legal and medical affairs. This means, for example, that they are responsible for approving any medical treatment or procedures their ward will undergo. They are also responsible for signing contracts, monitoring their living conditions, and, if necessary, fighting on behalf of their ward in court.
A related concept to the guardian is the conservator, who is charged with overseeing a person’s financial affairs on their behalf. This means ensuring bills are paid on time, managing any investments or retirement accounts, and generally making sure the person’s money is effectively managed. Often, someone who has been appointed as a guardian will also be appointed to be a conservator, but occasionally the roles are split between two people.
Regardless, in the context of elder law, a guardian is typically appointed when someone lacks a power of attorney or healthcare proxy and they become incapacitated or otherwise unable to conduct their own affairs. If they had those arrangements, known as advance directives, in place, whoever was designated in the respective documents would be put in charge of the ward’s legal, financial, and/or medical affairs. A guardian is only appointed because adequate measures were not put into place beforehand.
To have a guardian appointed, someone close to the incapacitated individual, usually a family member, must go to the Surrogate’s Court and make an application to have a guardian appointed by the court. The Court will then hear testimony and collect evidence on who, if anyone, would best make for a guardian for the incapacitated person. Once it has heard sufficient evidence and testimony on the issue, it will then designate someone as the guardian. Often, it is the same person who brought the case before the court in the first place, but it could turn out to be another family member, a close friend, or even a complete stranger if the court believes no one close to the incapacitated person would be able to adequately care for the person’s needs.
Once appointed, a guardian has a legal obligation to look after their ward and make sure their needs are taken care of. They must make regular reports to the court about their ward’s well-being and must give an accounting of any money they spend from their ward’s finances to avoid possible abuse. A guardian who abuses their authority or steals from their ward can be fined or jailed, meaning there is an incentive beyond the guardian’s relationship with the ward to care for their interests.
However, a guardianship is not usually a favorable scenario for anyone. Often, it means a ward is stuck in the care of someone other than who they would prefer was caring for them, and the guardian is burdened by their duty to the court. Much of this can be avoided by having a power of attorney and healthcare proxy arranged for in advance, so if you do not want to put your fate in the hands of the court, you should begin planning your estate and forming advance directives as soon as possible.
The elder law attorneys at David J. Lorber & Associates, PLLC will thoroughly analyze your estate and work with you to determine the best means of transferring your assets, minimizing taxes, and ensuring your needs are met. For comprehensive estate planning services in New York, call David J. Lorber & Associates, PLLC at (631) 750-0900 or contact us online to schedule a free consultation at our Setauket office.
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