WHAT IS ADULT GUARDIANSHIP?
Adult guardianship allows an individual (or agency) to obtain guardianship over an individual that is not a minor. Guardianship can be obtained over the person (the ability to make decisions for the person), the property (the ability to control the person’s finances) or both.
There are 2 types of Adult Guardianship Proceedings in New York: Article 81 proceedings and Article 17-A proceedings.
New Jersey does not have the equivalent of Article 17-A; in New Jersey adult guardianship regardless of the underlying condition is filed in Superior Court.
NY ARTICLE 81 PROCEEDINGS:
This is a proceeding in the New York Supreme Court allowing guardianship over an individual who is unable to take care of him or herself due to a variety of reasons, including old age, Alzheimer’s, dementia, etc.
NY ARTICLE 17-A PROCEEDINGS
This is a proceeding filed in New York Surrogate’s court allowing guardianship over an intellectually disabled or developmentally disabled individual. This type of proceeding is not used for the elderly, but rather for individuals with mental or physical defects (ex: mental retardation, down syndrome, cerebral palsy, autism, etc.).
NJ ADULT GUARDIANSHIP PROCEEDINGS
All adult guardianship proceedings in New Jersey are filed in Superior Court. Regardless of the underlying reason (old age, Alzheimer’s, dementia, mental retardation, down syndrome, cerebral palsy, autism, etc., the Superior Court has the jurisdiction to decide these cases and appoint a guardian.
HOW MUCH DOES GUARDIANSHIP COST?
The Levin Law Group charges $3,500 for the appointment of a guardian. This fee does not include court filing fees, service of process fees or any other third party fees. This fee also applies only in situations when the guardianship will not be contested by the individual over whom guardianship is sought or his or her family members. For Contested Guardianship, click here.
ADULT GUARDIANSHIP FAQ
1. What is adult guardianship? Adult guardianship is a legal process in which a court appoints a guardian to make decisions on behalf of an incapacitated adult who is unable to manage his or her personal, financial, or medical affairs.
2. Who can file for adult guardianship? Any interested party, such as a family member, friend, or concerned individual, can file a petition for adult guardianship. Typically, the petitioner should be able to demonstrate a legitimate interest in the well-being and care of the incapacitated person.
3. Who is considered an incapacitated person? An incapacitated person is someone who, due to a physical or mental condition, is unable to fully understand or make informed decisions about his or her personal, financial, or medical affairs. This condition must be demonstrated by medical evidence and evaluated by the court.
4. What are the different types of adult guardianship? There are two main types of adult guardianship:
- Guardianship of the person: This type of guardianship grants the guardian authority over the personal care and well-being of the incapacitated person, including decisions related to medical treatment, living arrangements, and daily activities.
- Guardianship of the property: This type of guardianship gives the guardian control over the financial affairs and assets of the incapacitated person, such as managing income, paying bills, and making investment decisions.
5. What is the process of obtaining adult guardianship? The process generally involves the following steps:
- Filing a petition with the appropriate court
- Notifying interested parties, including the incapacitated person
- Providing medical evidence of incapacity
- Attending a hearing where the court determines the need for guardianship
- If approved, the court appoints a guardian and issues Letters of Guardianship.
6. What factors does the court consider when deciding on adult guardianship? The court considers the evidence presented, including medical reports, evaluations, and testimony from professionals, to determine the extent of the person’s incapacity and the necessity of a guardian. The court also considers the proposed guardian’s qualifications, suitability, and willingness to assume the responsibilities.
7. Can the incapacitated person choose his or her own guardian? If the incapacitated person is deemed capable of expressing his or her preferences, the court will take their wishes into consideration when appointing a guardian. However, the court ultimately makes the final decision based on the person’s best interests.
8. What are the responsibilities and duties of a guardian? The specific responsibilities of a guardian can vary depending on the court order, but common duties include making decisions regarding healthcare, residential arrangements, financial matters, and overall personal welfare. The guardian is also required to file regular reports with the court regarding the condition and well-being of the incapacitated person.
9. Can the court modify or terminate an adult guardianship? Yes, the court has the authority to modify or terminate an adult guardianship if circumstances change. A petition must be filed, and the court will evaluate the new evidence or circumstances to determine if a modification or termination is appropriate.
10. Do I need an attorney for adult guardianship proceedings ? While it is not legally required to have an attorney, it is highly recommended to seek legal representation when pursuing adult guardianship. An experienced attorney can guide you through the process, ensure all necessary documents are properly prepared and filed, advocate for your interests in court, and navigate any complexities that may arise during the proceedings. Having an attorney can greatly improve your chances of a successful guardianship outcome.
11. What are the costs associated with adult guardianship ? Aside from legal fees, the costs of adult guardianship can include court filing fees, court evaluator fees, service of process fees, and other related expenses. It is important to discuss the potential costs with your attorney and have a clear understanding of the financial implications involved.
12. How long does the adult guardianship process typically take? The duration of the adult guardianship process can vary depending on several factors, including the complexity of the case and the court’s schedule. Generally, the process can take several months from the initial filing of the petition to the court’s final decision. An expedited process if available if the guardianship is an emergency.
13. Can I challenge or contest an adult guardianship ? Yes, interested parties have the right to challenge or contest an adult guardianship. This may involve providing evidence to the court that questions the need for guardianship or proposing an alternative guardian. We handle both contested and uncontested guardianship matters.
14. Can a guardian be removed or replaced? Yes, under certain circumstances, a guardian can be removed or replaced. This may occur if the guardian is found to be acting against the best interests of the incapacitated person, unable to fulfill his or her duties, or if there is evidence of misconduct. The court will review the situation and make a determination based on the facts presented. At the Levin Law Group, we have been on both sides of the dispute, sometimes defending the appointed guardian and sometimes seeking his or her removal. Please read here about guardianship litigation.
Feel free to to contact us today for a free consultation.
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