There are times when a loved one is unable to care for him or herself. This could be a lifelong condition due to diminished mental capacity, or it could be something that started because of age, illness, infirmity, an accident, or any number of other reasons. When this happens, family members typically come together to help that person with their needs, and even help them to get into assisted living facility, if necessary. Simply providing for their care is a great kindness, but it is important to make sure that it is all handled correctly from a legal perspective.
Setting up a legal guardianship and a conservatorship will allow you to legally make decisions on behalf of the individual. This also places one person in the position of responsibility for the individual so that everyone (including the State) knows that they are getting the care that they need. Legal guardian becomes personally responsible for acting in the best interests of the ward. In the eyes of the court, the guardian is a fiduciary and must act with the utmost care of the ward. We recommend that the individuals appointed as guardians have legal representation to ensure that they act according to the prescribed fiduciary laws of the State of New York. Most often, the courts will request that the guardians account for the acts and proceedings. It is best to have an attorney to prepare/review said accounting to avoid strict surcharges and personal responsibility by the courts. Legal guardians must be diligent and cannot hide behind a defense of passive indifference or lack of knowledge.
Guardianship Vs. Conservatorship
When someone needs to be taken care of, the courts are concerned with two main types of care. In order to ensure these the ward’s needs are met, the courts can assign someone to be a guardian, and someone to be a conservator. The difference between the two is as follows:
Guardian – A guardian is the person who the court appoints to legally make decisions about the day to day life including personal affairs, medical care decisions, housing situation, and other necessitates.
Conservator – A conservator is appointed by the court to make decisions about financial matters and to preserve and grow the assets of the ward.
The same person can be both a guardian and a conservator for someone in need. In addition, a person who needs care may only need either a guardian or a conservator, but not both.
Obligations of the Guardian
When someone is appointed as a guardian, or a conservator, they will have a number of important obligations that they must meet. This obviously starts with providing for the care that the individual needs, but it goes beyond that. As a guardian, you must always act with the best interests of your ward . You can’t ‘self-serve’ or make a decision that is best for you personally. If you do, there can be serious legal ramifications.
Set Up a Guardianship
If you have a loved one who is in need of care, please contact us to learn more about how you can set up a guardianship or conservatorship. This is not something you want to put off since it can take-weeks for the courts to approve this type of request. Please contact us at 212-596-7039 to set up a consultation today. We’ll help you get everything taken care of so you can ensure your loved one is cared for properly.
Our policy is to communicate clearly, concisely, and on a timely basis. To be responsive to clients. If we can’t take your call immediately, you can expect that a telephone message left in the morning.