Once a person becomes a guardian, they should be aware of their responsibilities. Guardians must promote the ward’s autonomy to the fullest possible extent and must make decisions in the ward’s best interests.

Legal Guardianship for Adults under Article 81 of the Mental Hygiene Law

Guardianships are tailored to the needs of the ward. An adult may require assistance with all aspects of personal and financial needs, or may only need help in certain areas. If a ward only needs assistance in certain areas, a court will create a limited guardianship and allow the ward to retain full autonomy as to all other areas. It is the least restrictive arrangement.

• In guardianships of the property, guardians perform all financial transactions for a ward, including collecting income, paying bills, and filing taxes.
• Guardians of the person make decisions regarding a ward’s personal needs, such as decisions regarding health care, where the ward may reside, and who can provide services to the ward.

Effect on the Ward

In many cases, those subject to guardianship do lose certain rights, which can vary depending on how restrictive the guardianship is. In some circumstances, this includes:

• Voting
• Marriage
• Choosing where to live
• Providing medical consent
• Deciding whether to execute a DNR or DNI
• Holding a driver’s license
• Controlling, buying, or selling property
• Owning a firearm or weapon
• Entering into contracts, such as leases

Guardian’s Responsibilities

As a person making decisions for those who cannot, guardians must act in the best interests of the ward and support their independence to the greatest extent possible. Depending on the terms of the order appointing the guardian, responsibilities may include arranging appropriate housing, education, and access to medical care. States, such as New York, can also require guardians to take classes.

Although the guardian’s control can extend across many domains of the ward’s life, the guardian’s power stems from the court. Individuals exercising authority may face sanctions if the court has not approved a particular action.

Many guardianship orders allow a competent adult to manage the routine finances of an incapacitated individual — to purchase food and pay bills, for example. In many cases, however, the court requires a guardian to seek permission before completing more significant transactions such as selling a ward’s home or paying for large expenses.

Annual Report

Guardians must file a yearly report. Depending on the guardianship type, this document may update the court on factors such as the ward’s physical and emotional wellbeing, care plan, and status of the ward’s finances.

It is crucial that guardians remember to keep good records and submit the report each year. Otherwise, they could face judicial reprimand or removal.

Removing Guardians

When guardians fail to uphold their duties, the court may strip them of their authority and appoint another guardian. Grounds for removal include:

• physical abuse
• emotional abuse
• financial abuse
• failure to meet procedural standards, such as neglecting to file the annual report

Terminating a Guardianship

Capacity can fluctuate over time. In some cases, an incapacitated person regains his or her cognitive abilities. This sometimes happens in cases where a ward has experienced a traumatic brain injury and is able to regain cognitive functioning after treatment and therapy. When a person wishes to end a guardianship, they can ask the court to terminate it.

Overcoming a finding of incapacity and ending a guardianship can be challenging. Although individuals can represent themselves pro se, or without an attorney, a guardianship attorney can help those subject to guardianship restore their rights.

Find a Guardianship Attorney

Speak to a guardianship attorney at Kommer Bave & Ciccone LLP to learn more about bringing, maintaining, or ending a guardianship.

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