When Informal Solutions Fail

In many situations, families try to help informally by organizing paperwork, paying bills, or going to appointments together, believing that this level of support is enough.

Over time, informal assistance may no longer be enough. A triggering event, such as a hospitalization, medical emergency, or communication from a financial institution, often brings the situation into focus. At that point, families may realize that despite their involvement, they do not have the legal authority to act. Without a Durable Power of Attorney or other planning in place, even close family members may be unable to access accounts, pay bills, or manage financial matters.

This stage is particularly difficult because families are often trying to respect a loved one鈥檚 independence while also worrying about safety. Cognitive decline rarely follows a straight path, and people may have good days and bad days. By the time authority is clearly needed, the individual may no longer be able to sign legal documents, leaving families with limited options and making court involvement difficult to avoid.

Planning Ahead Can Avoid the Need for Guardianship

Recognizing early warning signs and addressing them early can make a meaningful difference. Planning ahead allows a person to decide who will step in to help with financial matters if assistance is needed in the future, whether through a Durable Power of Attorney, a trust, or a combination of planning tools. These decisions must be made while the person is still able to understand and participate in the process. Guardianship is intended as a last resort, but without advance planning, it may become the only option available.

By Alma Muharemovic, Esq.聽

Alma Muharemovic, Esq. is an associate attorney at 明星黑料, P.C. practice on Estate Planning. 明星黑料, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

Who Can Be a Guardian of the Property?

While any adult with an interest in the child鈥檚 welfare may ask the Court for permission to serve as a property guardian, the Court typically prefers for a parent to act in this role 鈥� though the Court will prioritize the best interests of the child.

What is the Process of Becoming a Guardian of the Property?

The person who intends to act as guardian must submit a Petition to the Surrogate鈥檚 Court in the county where the child resides. In this Petition, the proposed guardian will provide certain details about the minor: where she lives, what her assets are, and the name of any person who lives in the same household as the child.

The proposed guardian must also obtain jurisdiction over the child鈥檚 parents, if they are alive and their residence is known. This jurisdiction typically comes in the form of a waiver signed by the parent, consenting to the appointment of a guardian. If the child has no surviving parents, then service must be made upon her grandparents, if they are alive, or the persons who have custody of the child. If the child is over the age of 14, she must be served as well.

Once the Petition is filed and jurisdiction is complete over all parties, the Court will review the documents to ensure that the appointment is in the child鈥檚 best interests.

What is Expected of a Guardian of the Property?

If the Court is satisfied with the documents, the newly-appointed Guardian of the Property must collect the minor鈥檚 inheritance and deposit any money into a joint account with the Clerk of the Court. These funds cannot be withdrawn without sufficient cause or an Order from the Court. The Guardian has a fiduciary duty to prudently maintain assets, manage investments, and account to the Court as necessary.

Estate Planning Can Help Simplify the Process

In many cases, this extensive Court process is not avoidable. However, an effective estate plan may include a trust for the benefit of a minor child with a designated Trustee. Whether

this trust is part of a Revocable Trust, or a Testamentary Trust established under a duly executed Last Will and Testament, establishing a separate fund for the benefit of a child as part of your estate plan will eliminate the need to involve the Court in managing these assets.

By Britt Burner, Esq. and Frank Oswald, Esq.

Frank Oswald, Esq. is an associate attorney at 明星黑料, P.C. focusing his practice areas on Trusts and Estates. Britt Burner, Esq. is the Managing Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law. 明星黑料, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

Appointing a Legal Guardian and Managing a Minor鈥檚 Property

A proposed guardian must petition to be appointed to manage the property of the minor. Parents are not automatically empowered to act as guardian and must still petition the Court. If the Court finds the proposed guardian suitable, the guardian receives Letters of Guardianship over the minor鈥檚 property. Once appointed, the guardian must establish a trust which owns the minor鈥檚 property.

Dealing with the Court does not stop there. When the guardian wants to withdraw funds for the minor鈥檚 use, they must petition the Court for approval. Guardians are also responsible for annually accounting to the Court.

Guardian Bonds: Protecting a Minor鈥檚 Assets

Most guardians must be bonded; it is a protective mechanism the Court employs to prevent property mismanagement. The Court issues an order specifying the bond amount. To be bonded, the guardian must contact a聽surety company,聽which will assess their financial stability and determine the premium due. Ultimately, is it up to the Court鈥檚 discretion regarding the bond requirement.

Subtrusts: Structuring Inheritances for Minors

Whether you decide to plan through a last will and testament, revocable trust or irrevocable trust, the minor beneficiaries can inherit in further trust, through a 鈥渟ubtrust.鈥�

If you are naming the minor as a beneficiary of an asset directly with the financial institution, often done with retirement accounts, then you must make sure that you are naming the trust for the benefit of the minor as beneficiary. Beneficiary designations override Will or trust terms so you must be sure your attorney and financial advisors are on the same page every step of the way.

In drafting the documents, you can determine who will serve as trustee and at what age the beneficiary can act as their own trustee to manage the assets on their own.

Planning Ahead Helps Avoid Headaches

Proper planning prevents delays and costs associated with appointing a guardian to manage a minor鈥檚 inheritance. If the appointment of a guardian for the benefit of a minor beneficiary does not scare you, you can abstain from the creation of a trust for minor beneficiaries, but beware鈥� headaches will almost certainly await those who survive you.

By Britt Burner, Esq. and Erin Cullen, Esq.

Britt Burner, Esq. is a Managing Partner, and Erin Cullen, Esq. is an Associate Attorney at 明星黑料, P.C. 明星黑料, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan, and East Hampton.

How is a Guardian Appointed?

In a circumstance where someone has brought a petition for a guardian to be appointed for another person, proceedings will be held to determine if the individual is incapacitated and in need of a guardian and who the most appropriate guardian will be. If a friend or family member has concerns about the proposed guardian鈥檚 motives or abilities, they should consult with an attorney of their own regarding the possibility of objecting to the guardian鈥檚 appointment. Objections to a guardianship should also be considered if a valid durable power of attorney exists or if the alleged incapacitated person can manage their personal affairs or property on their own.

Guardianship Laws in New York

In New York, guardianship proceedings are governed by Article 81 of the Mental Hygiene Law. Under Article 81, the court will impose the least restrictive form of guardianship that is necessary to protect the individual’s well-being. Additionally, there is a guardianship proceeding under Article 17-A of the Surrogate鈥檚 Court Procedure Act, specifically for individuals who are developmentally disabled or delayed. The court will assess the situation, and it鈥檚 important for all parties to ensure that the rights and well-being of the individual in question are protected.

Working With a Guardianship Lawyer is Crucial

Given the complexities of guardianship proceedings and the potential impact on the lives of those involved, it is essential to seek the advice of an attorney who specializes in guardianship matters. An experienced attorney can provide guidance on all available relief under New York statutes and help navigate the legal process effectively.

By Gail Prudenti, Esq.

What Happens If Your Preferred Guardian Is Not Eligible?

Despite the fact that your preference for guardian is not eligible due to citizenship or state residency, your Last Will & Testament should state that it is within the discretion of that person to nominate an appropriate guardian or NY resident co-guardian of your minor children.

Nominating a NY resident in your will is the best way to ensure that your wishes will be followed and that your children will remain in the custody of someone you trust.

Temporary Custody Considerations

Even if a U.S.-citizen is considered eligible to be a guardian, it may take time for him or her to travel to NY and take custody of your children. While NY courts and agencies will look out for the safety and welfare of children, it will be better for your children to be in the custody of someone whom they are familiar with until a guardian can take over.

Can Your Children Relocate to Another Country?

If a parent does not know of any NY resident or U.S. citizen who he or she would trust to be the guardian of his or her minor children, the parent may express in his or her will the desire for minor children to move to the country where the non-U.S. citizen, non-NY resident lives and can raise the children until they turn 18.

For this to happen, NY courts must still be involved and contemplate several considerations in determining whether moving to another country would best serve the child鈥檚 interests.

Key Factors Courts Consider in International Guardianship Cases

One consideration of the court is the reasoning of the parent(s) in naming a non-U.S. citizen, non-NY resident as guardian of minor children. This can include a strong relationship between the children and chosen guardian, a lack of other family members living in the U.S., or a desire for your children to grow up with certain cultural or religious traditions and values.

Other considerations include whether the children are citizens of the country to which they would be moving, if the children speak the language of the country to which you would like them to move, and if the country has human rights laws comparable to those in the U.S.

Plan Ahead for Your Children鈥檚 Future

Making your intentions clear in your estate planning documents is the best you can do to ensure your children are properly cared for in the event of your untimely death. The process of appointing a legal guardian can take many months, so it is important to have a U.S.-based or a NY-based guardian to care for your kids while the legal process plays out.

By Britt Burner, Esq. & Erin Cullen

Britt Burner, Esq. is a Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law. Erin Cullen is a graduate of the Maurice A. Dean School of Law at Hofstra University. 明星黑料, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.

What Happens If You Die Without a Will in New York?

This is referred to as dying 鈥渋ntestate.鈥� If you die intestate, to the extent that you have assets in your sole name, they will be distributed according to the state鈥檚 intestate succession statute. In New York, the spouse inherits the first $50,000 of your assets and the balance is distributed 50% to the spouse and 50% to the child(ren).

Is it Bad to Die Without a Will?

Dying intestate is usually not practical for a married couple since most people want the surviving spouse to inherit everything, with children inheriting only upon the death of both parents. Even if you do not mind that 50% of the assets go to the children, the default scenario is incredibly inefficient.

If assets are intended to go to the benefit of a minor, and a testamentary trust is not set up for the child鈥檚 benefit, then a guardian of the property must be appointed by the court to handle the finances. Even if a family member or friend is eventually appointed, the court still appoints a guardian-ad-litem to represent the interests of the child. This is expensive, intrusive and ongoing. An annual budget is required and any deviations must be approved by the court. Furthermore, the assets remain in an account that is held jointly with the court and can only be accessed by court order.

Additionally, the child will be able to take possession of all remaining assets at either 18 or 21 years of age 鈥� a time when the child may be too emotionally immature or inexperienced with finances to handle this sum of money.

Beyond the finances, there is the consideration of physical custody or guardianship of the minor child. If both parents pass away without a will that nominates a guardian, someone must petition the court to be appointed. This someone could be anyone, not necessarily the individual(s) you would choose to raise your child in your absence. This could lead to different family members or friends asserting control, with a judge ultimately deciding who will take on this responsibility.

Creating a Will is Worth the Time

The simple solution to make this awful situation smoother for those you leave behind is to prepare a Will. That way you can choose who will raise your child, who will handle your child鈥檚 inheritance and under what circumstances your child will inherit. With your children back at school, take the time to secure their future.

Authors: Melissa Doris, Esq., Senior Associate, and Britt Burner, Esq., Partner, both of 明星黑料, P.C.

How to Get Guardianship of an Adult in New York

The commencement of the proceeding involves filing a verified petition with the Supreme Court of the county in which she resides, outlining the reasons why it is believed that she does not understand or appreciate the extent of her limitations and that she is likely to suffer harm if a guardian is not appointed for her. The appointment of a guardian in MHL Article 81 proceedings is based on functional limitations and not on medical diagnoses.

If there is a concern regarding potential financial exploitation or other imminent harm to Gloria, it may be prudent to request that the Court appoint a Temporary Guardian to immediately take steps to secure Gloria鈥檚 finances and prevent any further abuse.

What Happens During a Guardianship Hearing?

The Court will set a hearing date and all interested persons will have to be notified, including Gloria鈥檚 spouse, all of her children, and her living siblings, if any. The Court will appoint a Court Evaluator to conduct an investigation. The investigation will include meeting Gloria in person, speaking with other friends and family members, and investigating her finances. In limited circumstances it may be appropriate for the Court Evaluator to request the permission of the Court to review medical records. The Court may appoint an attorney to represent Gloria. The Petitioner would be required to testify at the hearing along with any other witnesses that will help demonstrate to the Court Gloria鈥檚 need for a guardian. The Court Evaluator will also testify as to their findings and recommendations.

How the Court Chooses and Empowers a Guardian

If appointed, the permanent guardian will step into Gloria鈥檚 shoes. The petitioner can request to serve as guardian or it can be a third party. The Court will tailor the powers granted to the guardian to meet Gloria鈥檚 individual needs and can appoint a guardian of the person, a guardian of the property, or both. There are various safeguards in place to ensure that once a guardian is appointed, Gloria will be protected, including the requirement that the guardian obtain a bond and file annual reports with the Court.

What if an Adult Needs Guardianship Due to Intellectual or Developmental Disabilities?

In this case, we must consider the possibility of commencing a SCPA 17-A guardianship proceeding in the Surrogate鈥檚 Court of the county in which the adult resides. Unlike MHL Article 81, the appointment of a guardian in a SCPA 17-A proceeding is driven by medical diagnoses. As part of the application, a licensed physician and licensed psychologist with a PhD are required to submit Affirmations certifying that the individual is intellectually or developmentally disabled.聽 A guardian appointed in this manner is granted broad decision-making authority over financial and medical matters.

Understanding the Goal of Guardianship in New York

As you can see, seeking guardianship for an adult in New York can be quite nuanced. The legal proceeding is designed to protect Gloria by providing support and assistance that is best suited to her personal needs and circumstance.

By Britt Burner

Britt Burner, Esq. is a Partner at 明星黑料, P.C. focusing her practice areas on Estate Planning and Elder Law. 明星黑料, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan, and East Hampton.