Guardianship Lawyer Staten Island

Guardianship Lawyer Staten Island: Who Will Take Care of Your Kids When You Die?

Facts: Less than 49 percent of families haven’t identified a guardian for their child.

We are experienced and provide effective solutions of child and elder guardianship claims in the state. We have knowledgeable lawyers that have expertise in matters guardianship law, including but not limited to incompetent and mental disability claims in the county. As a client, you have the confidence in knowing that the case is being handled by someone that is experienced.

When it comes to New York guardianship law, you need a guardianship lawyer Staten Island team that understands the different clauses that dictate what happens, specifically Article 81 and Article 17-A.

One essential value that individuals of all ages hold is the ability to become independent. Unfortunately, there are individuals whose individual independence remains limited even after attaining adulthood.

For such individuals, a guardian must be appointed to ensure that they continue to receive the best care needed. In New York, various basic forms of guardianship apply.

One most common is Article 81 Guardianship which is appropriate for individuals who were once self-dependent but experienced situations that caused functional and cognitive limitations. Such people are no longer able to meet their day to day responsibilities as required.

The second one is Article 17A guardianship that is appropriate for parents with special needs children. Once your child experiences developmental or intellectual disability either at birth or during their upbringing, you will need to continue making decisions on their behalf even after they attain adulthood.

To continue making any decisions on behalf of an incapacitated individual, you will need to obtain legal rights from the relevant court. If you wish to become an Article 81 guardian for your loved one, you will need to initiate a petition in the Supreme Court. For being a 17A guardian, you will also need to file the requisite petition in the Surrogate’s court within your location.

After being appointed as a guardian using any of the two laws mentioned above, you will be able to make vast decisions on behalf of the ward, based on the powers bestowed on you by the court.

You can make a wide range of financial decisions ranging from investing the person’s assets, protecting these assets, and using them to generate income for the ward’s needs.

If you are an Article 81 guardian, you may also gift part of the ward’s assets to their loved ones as you deem appropriate.

One of the most difficult decisions that a parent of younger children in Tottenville has to make when drafting a will is deciding who is to be appointed as a guardian of the little kids. Whenever you decide to draft a will, it is vital that you include a clause that directs the court on who takes over as the guardian.

Including a guardianship clause in the will is ideal when you have kids that are under the age of 18 years old.

Appointing a guardian is important due to the increase in the number of extended and blended families. The issue can be very sensitive and needs a lot of careful consideration.

Having kids adds a new dimension to the estate planning process. We have seen circumstances where both parents are dead and they failed to come up with a plan, and the child has to be placed in a foster home. This is usually disruptive for many kids, even when the new family is made of relatives. Parents can avoid this issue if they choose a guardian for the will.

What is a Legal Guardianship

A guardian refers to a person that is responsible for the welfare of another person. The welfare in this case means personal as well as the financial welfare. Legal guardianship of adults comes for the courts, because it is a legally binding agreement. The court looks at the different aspects that make the ward become a candidate for guardianship, then appoint the right guardian for him or her.

There are 4 Types of Legal Guardianships

When you decide to be a guardian, you have to know the different types of guardianships that exist. These included:

Permanent Guardianship

This is when the person is given a permanent responsibility over the adult. This is usually ideal when both the parents have died and there is no one to look after the person.

Limited Guardianship

Here, the person in need of the guardianship doesn’t require extensive supervision. This means your powers as a guardian are limited to the needs of the person. You are only allowed to make decisions that the ward cannot make on themselves. These powers are mentioned in the order that the court comes up with.

Guardian of the Estate

This is a type of limited guardianship that gives the guardian responsibility over the financial aspect. The aim is to preserve and manage the assets in the interest of the individual.

Guardian of the Person

This is also a limited guardianship that gives the guardian the authority over the non-financial aspect of the individual. These include comfort, education, healthcare and other personal matters.

Ten Issues to Consider when Choosing a Guardian for a Child

There are a few aspects you need to look at when you choose a guardian for the child. These include:

Understand the Different Roles the Guardians Play

When choosing a guardian, you need to understand that there are two types of guardians – guardians of the person and guardians of the estate. Guardians of the person will manage the day to day living of the child, while those of the estate manage the assets that are owned by the child.

You can decide to have different guardians for this role or choose to have just one guardian to play all the roles. Make sure you choose a person who has the capacity to perform these roles.

Just the way you can choose more than one person to be guardians of the person and the estate, you also have the capacity to choose more than one type of guardian if you have more than one kid. Handling more than one child can be taunting for one guardian, which is just right that you pick several guardians that can handle the task properly.

Many people don’t want to separate the kids when it comes to choosing guardians. This is why they opt to have a single guardian watch over several kids at the same time.

Match the Attributes

When choosing the right guardians for your child, you need to understand the two types of guardianships. Try and match the people with the skills that suit the different roles. Don’t just look at the skills that the person possesses; rather consider the behavior of the person as well.

Understand Shared Values

Work with someone that shares your values, goals and the parenting style. This works whether you are choosing a guardian of the estate or of the child as a person. You might choose a person that doesn’t possess the capacity to make financial decisions, but as long as they share in your childrearing philosophy, you can allow them to take care of the kids.

Longevity

Pick a person that is young enough to handle the responsibilities of the kids till they become adults. The person needs to have the strength to withstand the childrearing challenges. This is why you need to consider the health of status of the person before you make the choice. It would not be wise for you to choose a person that won’t be there a few years down the line.

You might be tempted to choose your parents to be guardians, but are you sure they will see the kids through to adulthood? It could be a better decision to choose someone your age or younger to see this through.

Make Independent Decisions

At times you find yourself being influenced by other people when making a decision. Unless the person that tries to help you is closely and directly related to you, the decision belongs to you alone.

However, you need to make sure that you choose a person that the court will corroborate as the best person. For instance, even if your brother is one of the best choices yet he has a criminal record or he has a history of drug abuse, you shouldn’t put a lot of emphasis on him.

Know Your Financial Ability

You don’t want your kids to suffer, and if you have been able to provide for them, then you need someone that can pick up from the point you left off. This is why you need to choose someone that has the financial resources to take care of your kids when you cannot do it. Remember that it takes a lot of financial resources to take care of the kids, and you don’t want to put these burdens on someone that doesn’t have the financial muscle to handle them.

Talk it Over

While the guardian selection stops with you, it is also vital that you consult the proposed guardian before you make the final decision. You might have the perfect choice, but if the person doesn’t want to act as a guardian, then you don’t have a choice but to look for someone else. It is better to understand this earlier on so that you have another chance at making the right choice.

Another person you need to talk to is a guardianship lawyer. As lawyers, we have seen so many situations that would have been better if consultation would have been made. Many people only consult us when they have litigation or a contest. Even before you start the guardianship process, take time to talk to us so that you can get a few directives on how to make the process faster and easier.

Get it in Writing

Once you have a final decision, consult us to draft for you the necessary documents so that your choice is legally binding and official. We can use your will, trusts and other documents to implement the decisions you have made.

Our role at this moment is to advice you on the proper procedure going forward, prepare the documents and then file the necessary documents.

Make No Mistake

When you don’t specify a legal guardian for the kid in your will, you are leaving a very sensitive and vital decision in the hands of strangers. If your spouse is still alive, then you need to talk to them about the process, and include her name in your ill, and include the deliberation in both the wills to avoid any issues later on.

Additionally, make sure to name an alternative guardian should the original person be unable to take on the responsibility.

Provide for Each Child

So, how many kids do you have under the age of 18 years old? Make sure all the kids are provided for separately in the will. This might sound obvious, and we have seen many people make this mistake, but don’t name just a single kid and then assume that the court will grand custody of all the kids to the named guardian.

Determine Where the Kids will Live

Where would you like the kids to live when you are gone? Do you want them to live together or won’t you mind if they are separated? Make sure that you specify this fact in your will. This is ideal so that when the primary guardian doesn’t serve, the court will make sure that the alternate guardian will still take the kids as planned.

The Need for Co-guardians

If you prefer to have your kids raised by more than one guardian, then be sure that you name the people that you want to do this for you. For instance, you can choose to have your brother and his wife to be the guardians. Make sure you point this out in your will clearly.

Where Does the Guardian Live?

Are the guardians in the same town as you? Are they a few tons over or in another state? The location of the guardians matter a lot, because it will determine how far other members of the family are. You have to understand whether the kids have to move to a new location, which might be stressful to you.

Location also determines whether the kids have to change schools. Many parents prefer that their kids remain in the same school or in the same school district.

Things a caregiver needs to know about guardianship

Caregivers are usually named in circumstances where the person or people a child stays with are not their parents. They can also be named to help make decisions on the most befitting and effective social services a child should receive. This includes both medical care and decisions on matters of a child’s education.

A guardian can also be appointed on similar grounds. The difference is that while a caregiver can make decisions alongside the child’s parent, a guardianship bestows decision-making powers, based on the type of guardianship, to the guardian and guardian alone. The parent does not take part in making decisions. Here are the things that are important for a caregiver to know about guardianship;

Understand Guardianship

Guardianship is a legal process that seeks to appoint someone and bestow them with the powers of making decisions on behalf of someone who, for reasons of health or incapacity, cannot make them by themselves. The caregiver is also assessed to determine their ability to manage the life of the incapacitated person. In a guardianship, the person for whom the court appoints a guardian is referred to as a ward.

Know Guardianship Responsibilities

Ensuring the making of sound decisions concerning the care that befits the needs of the ward. This may be medical and educations decisions or financial decisions or both. Guardianship aims to ensure that decisions are made for the ward focusing on having him return to full autonomy speedily.

Who Can Become A Guardian?

When one becomes incapacitated or comatose, any interested party can petition the court to appoint them as their guardian. This includes a caregiver, relative, friend, or anyone concerned about the welfare of an incapacitated person.

What If the Care-Receiver Does Not Approve Of the Guardianship Petition

The caregiver should seek the services of a guardianship attorney immediately. The court conducts hearings and only decides on the guardian upon the presentation of satisfactory evidence showing the alleged ward’s state. The court must be convinced by presenting appropriate evidence that the alleged ward is indeed incapacitated and requires to be placed under the protection of a guardian that can act and advocate for the welfare of the ward.

Know the Care-Receiver Rights in a Guardianship Petition

The care-receivers are allowed to contest a guardianship petition that seeks to appoint someone to take over decision-making duties on their behalf. One can contest guardianship at three levels. One can contest the entire guardianship petition or object to certain powers sought to be given to a guardian or contest against the appointment to serve as a guardian, a particular person.

The care-receiver is legally allowed to have the hearings conducted in their presence and have a guardianship attorney represent them. The care-receiver can also table in court evidence supporting their own case and has a right to have witnesses cross-examined by him. This is besides the right to a jury trial.

Not All Guardians Have the Same Powers

The court requires that evidence be presented in court to determine the exact state of the alleged ward and their type of incapacity. This will be used in finding out the kind of needs to which powers to be granted to a guardian have to be tailored. The court will have the ward retain certain powers or grant all the powers to a guardian depending on the ward’s needs.

It Is Possible To Replace a Legal Guardian

Yes. This is possible through a motion initiated by the caregiver or any other parties concerned about the welfare of the ward. The motion petitions the court by reasons of the serving guardian’s ineffectiveness or otherwise, to have the guardian removed or changed.

The Tenure of Guardianship

Guardianship often lasts until the death of the ward. However, the court reviewed the guardianship to assess improvement in the state of the ward and possible review of powers or termination of guardianship altogether. A guardian’s powers can also be extended if medical examination based on the documents presented to the court show worsening of the ward’s condition.

A guardian is liable for the decisions they make on behalf of the ward following the establishment of guardianship. The guardian is also required to account for the monetary assets of the ward to court for approval. Certain decisions regarding the health and management of assets of the ward are subject to court approval.