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New York & North Carolina

A Closer Look at Adult Guardianship


What is guardianship?

Guardianship refers to the legal process of a court-appointed relationship between a capable adult and a person over the age of eighteen who has a disability preventing them from being able to make informed decisions or is unable to manage their own affairs without risk to themselves or others.

What is meant by disability?

Mental illness, developmental disability, aging, or other factors may be considered incapacitating disabilities.

What is a guardian?

A guardian is defined as a person who has been entrusted by the Surrogate Court with the care of another person, for the person’s property, or for the care of both person and property.

Who can be a guardian?

Friends, family members, neighbors, or professionals trained in guardianship functions may act as a guardian. The guardian, by law:

  • Must be over eighteen.
  • Must not have ever been convicted of a felony.
  • Must not be a professional providing services to the incapacitated adult.
  • Must not be in debt to the incapacitated adult.

How does guardianship work?

The court gives the guardian the ability to make decisions on behalf of the incapacitated adult. The power given to the guardian may be limited by the court depending on the mental capacity of the person involved.  There are two types of guardianships, guardianship of the person and guardianship of the property.

What is guardianship of the person?

This type of guardianship gives the guardian the ability to make decisions in areas pertaining to ensuring the safety and well-being of the incapacitated adult. These areas could include decisions regarding housing, education, standard of living, consent/refusal of medical treatments, and travel decisions.

What is guardianship of property?

This type of guardianship gives the guardian the ability to make decisions in areas pertaining to the management of the incapacitated adult’s financial affairs.

What are the responsibilities of a guardian?

An appointed may be responsible for any of the following duties:

  • Make informed medical decisions regarding doctors, treatments, and hospitalizations.
  • Keep accurate financial records of income and expenses.
  • File regular reports with the court and visit the incapacitated person at least 4 times per year.

How do you file for guardianship?

Once a petition for guardianship is filed with the court, a hearing date will be scheduled. During the hearing, the petitioner must provide convincing evidence that the incapacitated person is unable to manage their personal and/or financial affairs.

Is there an alternative to guardianship?

A power of attorney can be granted for a certain amount of time and for an explicit purpose, or for much broader purposes such as managing the financial affairs on behalf of another person and would remain in effect even when the individual is no longer able to make decisions due to health or mental capacity.