A conservatorship is a type of guardianship. Guardianship is an arrangement whereby one person (the guardian) is empowered to make important life decisions on behalf of another person (the ward) who has lost the capacity to make these decisions themselves. The decision-making powers that the guardian can exercise might include the power to manage the ward’s finances or healthcare decisions.
Perhaps you seek authority to make financial decisions on behalf of an aging parent. In New York, you must petition a New York Surrogate’s Court to appoint you as conservator (a “guardian of the property” in New York legal parlance). You must file certain paperwork, assemble evidence, attend a hearing, and prove your case using a heightened standard of proof.
What Is Incapacity?
Article 81 of New York’s Mental Hygiene Law defines incapacity (for guardianship purposes) as someone who is:
- Unable to provide for their own needs (financial needs in the case of an application for the guardian of the property); and
- Unable to appreciate the nature and consequences of the foregoing limitations.
A court, when determining the issue of incapacity, will place emphasis on the proposed ward’s functional limitations in day-to-day activities. The ward’s preferences matter, as do the relationship between the ward’s capabilities and the complexity of their finances.
Who Can Serve as a Guardian?
A guardian must be at least 18 years old and a legal resident of the United States. An individual can act as a guardian, but a corporation or a public agency can as well. Certain criminal records can disqualify a guardian. A conviction for embezzlement, for example, would likely disqualify an applicant for the guardian of the property.
The Guardianship Process
You must file your guardianship petition with the New York Surrogate´s Court in the location of the proposed ward´s residence. Your application package must include the following documentation:
- Request for Judicial Intervention: Filing this document requires you to pay a $95 filing fee and an additional $210 to get an Index Number. You can arrange a fee waiver under certain circumstances. This form is what kicks off guardianship proceedings with the court.
- Order to Show Cause: This order explains legal rights and notifies interested parties of the date, time, and place of the guardianship hearing. It describes the rights held by the proposed ward, and it lists the powers that you are requesting over the proposed ward.
- Verified Petition: Your guardianship petition explains why the guardianship should be established in the first place and why you should be the guardian. Like the Order to Show Cause, it also lists the powers you are requesting.
- Notice of Proceeding; You must mail this form to all interested parties (including the ward) together with the Order to Show Cause signed by the judge.
The court will appoint an evaluator to investigate the proposed ward in light of the claims you made in your petition. The evaluator will then issue a recommendation on the extent of the powers you should have (if any) over the proposed ward’s financial affairs. The court will then convene the guardianship hearing.
The Guardianship Hearing
The court will appoint an attorney to represent the ward, and you will bear the burden of proving that:
- The proposed ward cannot make certain decisions themselves, due to some form of incapacity (dementia due to aging, for example);
- Guardianship is necessary; and
- Appointing you as a guardian would be in the best interests of the proposed ward.
The guardianship hearing can be contested by any interested party, including a lawyer appointed by the court to represent the proposed ward. You will have the chance to present evidence, call witnesses, and cross-examine any witnesses called by anyone who might contest the guardianship. In all likelihood, the hearing will last only a few hours.
What Is the Burden of Proof at the Hearing?
You must prove each of the three elements justifying guardianship by “clear and convincing evidence.” “Clear and convincing evidence” is a standard of proof that is higher than the “preponderance of the evidence” standard used in most civil proceedings but lower than the “beyond a reasonable doubt” standard used in criminal proceedings. To meet this standard, your evidence must show that the proposition you are trying to prove is substantially more likely than not to be true.
After the Hearing: Guardianship Powers and Duties
Even if you are named guardian, a New York court might not grant you full authority over the ward’s finances. Instead, the court may grant you only partial authority as a way of maximizing the ward’s independence.
Powers
The court might grant you the power to:
- Pay bills;
- Review purchasing decisions;
- Conduct tax planning;
- Prevent third parties from committing financial abuse against the ward;
- Authorize the release of confidential financial information;
- Buy or sell the ward´s property (if necessary to pay debts, for example);
- Enter into contracts;
- Create a living trust;
- Apply for government benefits such as Social Security;
- Make gifts; and/or
- Engage in various other transactions.
You are always expected to act in the best interests of the ward.
Duties
As a guardian of the property, you must discharge the following duties:
- Attend a six-hour course on the duties of guardians in New York;
- Visit the ward at least four times every year;
- File a report 90 days after the guardianship is established;
- File an annual report in May of each year; and
- File a final report upon the termination of the guardianship.
You must also perform all the duties specified by the court for that individual guardianship.
Don’t Try to “Go It Alone”
The welfare of your elderly parent is too important a matter to leave to someone without experience in guardianship proceedings. Fortunately, however, Andrew M. Lamkin enjoys years of experience in successfully concluding such proceedings.
If you are anticipating initiating guardianship proceedings for your elderly parent or if you seek to oppose such an arrangement, please contact the Law Office of Andrew M. Lamkin, P.C. We can be reached online, by visiting our office in Plainview, New York, by emailing andrew@lamkinelderlaw.com, 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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