Although parents generally retain their parental rights even after a guardian is appointed, the rights of a guardian can override the rights of the parents, to the extent ordered by the court that established the guardianship. Nevertheless, a parent may seek revocation of a guardianship.
What Is a Guardianship?
A guardianship is a legal arrangement that gives a guardian the right to make decisions on behalf of someone else (known as the “ward”). In New York, a guardianship is assigned by the Family Court, the Supreme Court, or the Surrogate’s Court, depending on the circumstances.
A guardian may be assigned to either a minor or to a legally incapacitated adult. The guardian will undertake certain responsibilities on behalf of the ward. These responsibilities may include managing the ward’s finances, providing food and shelter, or making certain lifestyle decisions.
Qualifications of a Guardian
A New York guardian must be:
- At least 18 years old;
- A legal resident of the United States; and
- Appointed as guardian over a specific ward by the appropriate court.
No other formal qualifications have been specified by New York law. In actual practice, however, a court would likely take other factors into consideration, such as whether the proposed guardian has a criminal record.
Understanding Types of Guardianship in NY
New York law recognizes four major types of guardianship:
- Guardian of the person: The guardian makes lifestyle decisions on behalf of the ward. These decisions include where the ward will live. The guardian may also have the right to make healthcare decisions for the ward.
- Guardian of the property: The guardian manages the ward’s finances. Although this type of guardianship normally applies to an adult ward, it can apply to children who own property.
- Guardian of the person and property: The guardian enjoys the right to make both lifestyle and financial decisions on behalf of the ward.
- Guardian ad litem: A guardian ad litem represents the ward in a court case. The guardian’s rights terminate after the conclusion of the case.
If the ward is a minor, the ward’s parents retain their parental rights, at least to the extent that the court has not transferred them to the guardian. If a court appoints someone guardian of the ward’s property only, for example, the parents will retain the legal right to make lifestyle decisions on behalf of the minor. If, on the other hand, a court appoints someone guardian of the ward’s person only, the parents will retain the right to manage the ward’s property.
Example
A minor inherits a large sum of money from a deceased relative. The minor’s father is unknown, and her mother is a compulsive gambler. Consequently, a court appoints a family friend guardian of the minor’s property. In this case, the minor’s mother retains the authority to make lifestyle decisions on behalf of the minor but the guardian protects her property.
The key to understanding types of guardianship in NY is to realize that guardianship is designed to fill a vacuum left by a parent’s inability or unwillingness to exercise parental authority in a responsible manner.
The Issue of Parental Consent
There are two ways that a guardianship can be established—with or without the consent of the parent. In most cases, the parent consents to the guardianship. A court might establish a guardianship over a parent’s objections, however, if extraordinary circumstances exist and it would be in the minor’s best interests to establish the guardianship.
Guardianship Over a Minor Is Generally Temporary
Courts generally grant guardianship over a minor in response to temporary circumstances—the parent is ill, for example, or in the military and stationed abroad. In other cases, a parent might be incarcerated. In the latter case, however, a court could permanently terminate the parent’s rights.
Parental Termination of a Guardianship
Alternatives to Guardianship in NY
There are two major alternatives to guardianship in NY, at least with respect to guardianship over a minor: custody and adoption.
Custody
Custody is reasonably easy to transfer with parental consent. Without parental consent, the person seeking custody must convince a court that extraordinary circumstances, such as abuse or neglect, exist. A court will then grant custody if it is in the best interests of the minor. Courts generally consider custody to be a more permanent arrangement than guardianship.
Adoption
Adoption involves the permanent, irreversible termination of parental rights, with or without parental consent. It also involves the transfer of parental rights to a new parent or parents. Among guardianship, custody, and adoption, adoption is the most permanent arrangement.
Special Case: Emancipation
A court may decide that a minor qualifies as “emancipated”—that is, they are legally independent of the decision-making authority of their parents. Emancipation occurs if the minor:
- Is married;
- Is in the military;
- Has completed four years of higher education; or
- Has voluntarily moved out of their parents’ home and ended their relationship with the parents (except for reasons such as abuse).
Unless a court declares the minor incapacitated, an emancipated minor can establish an independent residence and manage their own finances and healthcare. Even an emancipated minor, however, cannot marry or work without the consent of their parents or guardian, as the case may be. Consequently, emancipation limits but does not completely terminate the authority of both guardians and parents.
Don’t Delay—Act Today
If you are facing guardianship proceedings, either as a parent or as a prospective guardian, or if you seek to terminate a guardianship, you should not attempt to proceed on your own—you are going to need legal assistance. Contact our experienced attorney at the Law Office of Andrew M. Lamkin, P.C. online or by calling 516-605-0625.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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