Are there any agencies that could assist me in the guardianship case of my adult daughter?
Full Question:
Answer:
A guardianship is a legal relationship that can be created when a person is assigned by the court to take care of and make personal decisions for another (ward). Guardianship of a minor can be over the actual minor, the property of the minor, or both. The guardianship of a minor remains under court supervision until the child reaches the age of majority. A guardianship restricts the individual's right to contract, marry, spend money, make decisions about their own care, or create a new will. The guardian may make personal decisions for the ward such as living arrangements, education, social activities, and authorization or withholding of medical or other professional care, treatment, or advice. Generally, a guardian is not charged with managing the income or property of the incapacitated person; however, the guardian may receive funds payable for the support of the ward such as social security as a representative payee. Even if a minor child lives with one or both parents, in some states a guardianship is required if the child inherits property worth more than a certain amount. After the court appoints a guardian, an inventory and appraisal must be filed, and annual or bi-annual accountings must also be filed with the court until the child reaches age eighteen. If a guardianship is contested, the court may appoint a disinterested third party to investigate and make recommendations. Usually called a guardian ad litem, this person evaluates both the necessity for a guardianship, and the appropriateness of the proposed guardian. The ward may also hire separate legal counsel. If the proposed ward is indigent, the court sometimes appoints counsel.
The court may terminate a guardianship if a subsequent hearing proves that the need for a guardian no longer exists, or in the case of a minor, when the child reaches the age of majority. When a guardianship of a minor is instituted because of the age of the ward, the guardianship may be terminated when the minor reaches the age of majority. The guardianship may be reinstated by the court after the ward reaches the age of majority where it can be shown that the ward still requires supervision. Guardianship may be terminated if the ward marries. Guardianship is automatically terminated at the death of the ward. In addition, the guardianship may be terminated, and a new guardian appointed, when it can be shown that the guardian did not adequately perform his or her duties to the ward. A guardian may be removed if a court determines that the ward no longer needs the services of the guardian. Also, a guardian may be removed when he or she has not provided adequate care for the ward or when it is determined that the guardian is guilty of neglect. Neglect can include using the ward's money or property for the guardian's own benefit and not obeying court orders. Upon court order, the guardian will be removed and a new guardian (or temporary guardian) will be substituted in place of the original guardian.
A conservatorship is created by the appointment of a conservator, also sometimes called a guardian. A conservator is a person or entity appointed by a court to manage the property, daily affairs, and financial affairs of another person, usually someone who is incompetent by reason of a physical or mental infirmity or age. An open hearing is held before the appointment is made. The conservator is required to make regular accountings which must be approved by the court. The conservator may be removed by order of the court if no longer needed, upon the petition of the conservatee or relatives, or for failure to perform his/her duties. Once a court has jurisdiction over a conservatorship that jurisdiction continues until it is terminated by the court. A conservatorship terminates upon the death of the protected person or upon a court determination that the disability of the protected person has ceased. The protected person, the personal representative of the protected person, the conservator, or any other interested person or entity may petition the court to terminate the conservatorship. Upon termination, title of the assets passes to the former protected person, or if deceased, as provided by the protected person's will.
§ 1719 Surr. Ct. Proc. Act. Annual account.
A guardian of an infant's property must within the counties within the
city of New York and within the counties of Nassau, Orange, Suffolk and
Westchester annually within 30 days after the anniversary of his
appointment and within every other county in the month of January of each
year, as long as any of the infant's property or the proceeds thereof
remains under his control, file in the court the following papers:
1. An account containing a true statement and description of each item of
personal property of the infant received by him since his appointment or
since the filing of his last annual account, as the case requires, the
value of each item so received, a list of the items remaining in his hands,
a statement of the manner in which he has disposed of each item not
remaining in his hands and a description of the amount and nature of each
investment of money made by him.
2. A true account in form of debtor and creditor of all his receipts and
disbursements of money during the preceding year, charging himself with any
balance remaining in his hands when the last account was rendered and
stating the balance remaining in his hands at the conclusion of the year to
be charged to him in the next year's account.
3. The names and addresses of the sureties on his bond; if natural
persons whether they are living and whether the security of the bond has
become impaired.
4. The guardian of an infant's property may be required by the court to
produce for examination by it all securities or evidences of deposit or
investment which he has relating to the estate of the infant.
5. When the property of an infant has been deposited under the provisions
of 1708, and the clerk or guardian clerk of the court shall keep in his
office, or the depositary furnishes to the court, an accurate record of
receipts of deposits of principal and income of the infant's estate and of
withdrawals therefrom, the guardian shall not be required to file an annual
account unless the court direct the filing of an account for any year or
years.
§ 1721 Surr. Ct. Proc. Act. Annual examination of guardian's accounts.
In the month of February of each year and thereafter until completed or
at such other time as the court deems proper, the court must for the
purposes specified in the succeeding section, examine or cause to be
examined under its direction all accounts filed within the preceding year.
The examination may be made by the clerk of the court or by a special
examiner appointed by the court, who must before he enters upon the
examination subscribe and take before the court and file with the clerk an
oath faithfully to execute his duties and to make a true report to the
court.
§ 1727 Surr. Ct. Proc. Act. Petition for termination of account of
guardian, committee, or conservator.
Where a guardian, committee or conservator is presently maintaining an
account on behalf of an infant, incompetent, conservatee or person under
disability in an amount not exceeding $10,000.00, which account was
established prior to the effective date of this section, the guardian,
committee or conservator may petition the court in the county having
jurisdiction over said account for an order authorizing the termination of
the account and payment of the balance of the account to a parent of such
person or to some competent adult with whom such person resides or who has
some interest in such person's welfare for the use and benefit of such
person.
§ 81.31 Mental Hyg. Annual report.
(a) Filing of annual report. Every guardian shall file a report annually
in the month of May, or at any other time upon motion or order of the
court.
(b) The report shall be in a form prescribed by the court and shall
include the following information:
1. the present address and telephone number of the guardian.
2. the present address, and telephone number of the incapacitated person;
if the place of residence of the incapacitated person is not his or her
personal home, the name, address, and telephone number of the facility or
place at which the person resides and the name of the chief executive
officer of the facility or person otherwise responsible for the person's
care.
3. any major changes in the physical or mental condition of the
incapacitated person and any substantial change in medication.
4. the date that the incapacitated person was last examined or otherwise
seen by a physician and the purpose of that visit.
5. a statement by a physician, psychologist, nurse clinician, or social
worker, or other person that has evaluated or examined the incapacitated
person within the three months prior to the filing of the report regarding
an evaluation of the incapacitated person's condition and the current
functional level of the incapacitated person.
6. to the extent the guardian is charged with providing for the personal
needs of the incapacitated person:
(i) a statement of whether the current residential setting is best suited
to the current needs of the incapacitated person;
(ii) a resume of any professional medical treatment given to the ward in
the preceding year;
(iii) the plan for medical, dental, and mental health treatment, and
related services in the coming year;
(iv) information concerning the social condition of the incapacitated
person, including: the social and personal services currently utilized by
the incapacitated person; the social skills of the incapacitated person;
and the social needs of the incapacitated person.
7. to the extent the guardian is charged with property management,
information required by the provisions of the surrogate's court procedure
act prescribing the form of papers to be filed upon the annual accounting
of a general guardian of an infant's property.
8. where the guardian has used or employed the services of the
incapacitated person or where moneys have been earned by or received on
behalf of such incapacitated person an accounting of any moneys earned or
derived from such services.
9. a resume of any other activities performed by the guardian on behalf
of the incapacitated person.
10. facts indicating the need to terminate the appointment of the
guardian, or for any alteration in the powers of the guardian and what
specific authority is requested or what specific authority of the guardian
will be affected.
11. any other information which the guardian may be required to file by
the order of appointment.
(c) The guardian shall send a copy of the annual report to the
incapacitated person by mail unless the court orders otherwise pursuant to
paragraph seven of subdivision (b) and paragraph nine of subdivision (c) of
section 81.15 of this article, shall send a copy of the annual report to
the court examiner, and shall file a copy of the annual report as provided
herein. If the incapacitated person resides in a facility, the guardian
shall send a duplicate of such report to the chief executive officer of
that facility. If the incapacitated person resides in a mental hygiene
facility, the guardian shall send a duplicate of such report to the mental
hygiene legal service of the judicial department in which the residence is
located. If mental hygiene legal service was appointed as court evaluator
or as counsel for the incapacitated person at the time of the guardianship
proceeding, the guardian shall send a duplicate of such report to the
mental hygiene legal service of the judicial department where venue of the
guardianship proceeding was located if so ordered by the court.
(d) The report shall be filed in the office of the clerk of the court
which appointed the guardian.
(e) If the annual report sets forth any reasons for a change in the
powers authorized by the court, the guardian shall make an application
within ten days of the filing of the report on notice to the persons
entitled to such notice in accordance with paragraph three of subdivision
(c) of section 81.16 of this article for such relief. If the annual
report sets forth any reasons for a change in the powers authorized by
the court, and the guardian fails to act in accordance with this
subdivision, any person entitled to commence a proceeding under this
article may petition the court for a change in such powers on notice to
the guardian and the persons entitled to such notice in accordance with
paragraph three of subdivision (c) of section 81.16 of this article for
such relief.
§ 81.32 Mental Hyg. Examination of initial and annual reports.
(a) Examination of reports generally.
1. Initial report. Within thirty days of the filing of the initial
report, the initial report filed by a guardian under this article shall be
examined.
2. Annual examination. Within thirty days after the filing of the annual
report of the preceding year, the annual reports filed by guardians under
this article shall be examined to determine the condition and care of the
incapacitated person, the finances of the incapacitated person, and the
manner in which the guardian has carried out his or her duties and
exercised his or her powers.
(b) Examiners. The presiding justice of the appellate division in each
department, or a justice of the supreme court or a special referee
designated by a majority of the justices of the appellate division in each
department at the request of the presiding justice, shall examine, or cause
to be examined by persons designated by the presiding justice or the
justices as examiners, all such reports.
(c) Failure to report.
1. If a guardian fails to file his or her initial or annual report, the
person authorized to examine the report shall demand that the guardian file
the report within fifteen days after the service of the demand upon him or
her. A copy of the demand shall be served upon the guardian or his or her
resident agent by certified mail.
2. Upon failure to comply with such demand, the court, may upon the
motion of the court examiner, enter an order requiring compliance with the
demand and may deny or reduce the amount of the compensation of the
guardian, or remove the guardian pursuant to section 81.35 of this
article absent a showing that the guardian has acted in good faith.
(d) Incomplete report.
1. If the person authorized to examine the report is of the opinion that
a more complete or satisfactory report should be filed, the person
authorized to examine the report shall demand that the guardian file a
revised report or proof of any item in the report. A copy of the demand
shall be served upon the guardian or his or her resident agent by certified
mail.
2. Upon failure to comply with such demand, the court, may upon the
motion of the court examiner, enter an order requiring compliance with the
demand and may deny or reduce the amount of the compensation of the
guardian, or remove the guardian pursuant to section 81.35 of this
article absent a showing that the guardian has acted in good faith.
(e) Duty of examiners. The person examining the report may examine the
guardian and other witnesses under oath and reduce their testimony to
writing. The person examining the report, on five days notice to the
guardian, shall file a report in the form and manner prescribed by the
order appointing the examiner.
(f) Expenses of examination. The expenses of the examination shall be
payable out of the estate of the incapacitated person examined if the
estate amounts to five thousand dollars or more, or, if the estate amounts
to less than this sum, by the county treasurer of the county or, within the
city of New York by the comptroller of the city of New York, out of any
court funds in his or her hands.
§ 81.33 Mental Hyg. Intermediate and final report.
(a) A guardian may move in the court of his or her appointment for an
order permitting him or her to render an intermediate report to the date
of the filing thereof in a form prescribed by the court which shall
include the same information as is required under section 81.31 of this
article provided, however, that if the incapacitated person has died the
report need not include information otherwise required in paragraphs five
and six of subdivision (b) of section 81.31 of this article. The court
may order the report to be filed with the clerk of the court on or before
a fixed date.
(b) When a guardian dies or is removed, suspended, discharged pursuant
to the provisions of this article, or allowed to resign, the court shall
order a final report in a form prescribed by the court which shall
include the same information as is required under section 81.31 of this
article provided, however, that if the incapacitated person has died the
report need not include information otherwise required in paragraphs five
and six of subdivision (b) of section 81.31 of this article. When such a
report has been made in the course of a proceeding to remove a guardian,
the court may dispense with a further report.
(c) Notice of the filing of a report under this section shall be served
upon the persons entitled to notice pursuant to paragraph three of
subdivision (c) of section 81.16 of this article. If the incapacitated
person is deceased, notice shall also be served upon his or her executor or
administrator, if any.
(d) The court may appoint counsel for the incapacitated person, if
living, for the protection of such person's rights and interests with
regard to such report. The court may appoint a referee to hear the matter
and report to the court.
(e) Upon the motion for a confirmation of the report of the referee, or
if the report is made before the court, upon the court's determination, the
report shall be judicially approved and filed. The compensation of the
referee and of counsel shall be fixed by the court and shall be payable out
of the estate of the incapacitated person unless it is determined that the
incapacitated person is indigent.
(f) If the incapacitated person resides in a facility, a copy of a report
under this section shall be served upon the chief executive officer in
charge of that facility and upon the mental hygiene legal service of the
judicial department in which the residence is located.
§ 81.35 Mental Hyg. Removal of guardian.
Upon motion, the court appointing a guardian may remove such guardian
when the guardian fails to comply with an order, is guilty of misconduct,
or for any other cause which to the court shall appear just. Notice of
motion shall be served on the guardian and persons entitled to receive
notice pursuant to paragraph three of subdivision (c) of section 81.16 of
this article. The motion may be made by the person examining initial and
annual reports pursuant to section 81.32 of this article, or by any person
entitled to commence a proceeding under this article, including the
incapacitated person. The court may fix the compensation of any attorney or
person prosecuting the motion. It may compel the guardian to pay personally
the costs of the motion if granted.
§ 81.36 Mental Hyg. Discharge or modification of powers of guardian.
(a) The court appointing the guardian shall discharge such guardian, or
modify the powers of the guardian where appropriate, if it appears to the
satisfaction of the court that:
1. the incapacitated person has become able to exercise some or all of
the powers necessary to provide for personal needs or property management
which the guardian is authorized to exercise;
2. the incapacitated person has become unable to exercise powers
necessary to provide for personal needs or property management which the
guardian is not authorized to exercise;
3. the incapacitated person has died; or
4. for some other reason, the appointment of the guardian is no longer
necessary for the incapacitated person, or the powers of the guardian
should be modified based upon changes in the circumstances of the
incapacitated person.
(b) The application for relief under this section may be made by the
guardian, the incapacitated person, or any person entitled to commence a
proceeding under this article.
(c) There shall be a hearing on notice to the persons entitled to notice
pursuant to paragraph three of subdivision (c) of section 81.16 of this
article. The court may for good cause shown dispense with the hearing
provided that an order of modification increasing the powers of the
guardian shall set forth the factual basis for dispensing with the hearing.
If the incapacitated person or his or her counsel raises an issue of fact
as to the ability of the incapacitated person to provide for his or her
personal needs or property management and demands a jury trial of such
issue, the court shall order a trial by jury thereof.
(d) To the extent that relief sought under this section would terminate
the guardianship or restore certain powers to the incapacitated person, the
burden of proof shall be on the person objecting to such relief. To the
extent that relief sought under this section would further limit the powers
of the incapacitated person, the burden shall be on the person seeking such
relief.
(e) If the guardian is discharged because the incapacitated person
becomes fully able to care for his or her property, the court shall order
that there be restored to such person the property remaining in the hands
of the guardian. If the incapacitated person dies, the guardian shall
provide for such person's burial or other disposition the cost of which
shall be borne by the estate of the incapacitated person.
§ 81.37 Mental Hyg. Resignation or suspension of powers of guardian.
(a) The court appointing a guardian may allow the guardian to resign or
may suspend the powers of the guardian.
(b) Where a guardian is engaged in war service as defined in section
seven hundred seventeen of the surrogate's court procedure act, the
court, upon motion by the guardian or any other person and upon such
notice as the court may direct, may suspend the powers of the guardian
until further order of the court. If the suspension will leave no other
person acting as guardian, the motion shall seek the appointment of a
successor. When the suspended guardian becomes able to serve, he or she
may be reinstated by the court upon motion and such notice as the court
may direct. If the suspended guardian is reinstated, the court shall
thereupon discharge his or her successor, who may be required to
account, and make any other order as justice requires.
