To obtain guardianship of a minor, a person must file a petition with the court. A petition is a legal form that allows a person to request something from the court. Anyone 18 years of age or older can file a petition with the court to become a guardian. A guardianship procedure begins with the filing of a “petition” in court.
A petition is a legal document that explains the facts that demonstrate the need for a guardian and requests the appointment of a guardian to make decisions. The judge will receive information and evidence about the case before deciding if a guardian is appropriate. The person subject to a guardianship proceeding retains the right to due process throughout the procedure and thereafter. The “petitioner”: the person who files the petition for guardianship, alleging the need for a guardian (often through an attorney).
The National Guardianship Association has ethical principles and standards of practice that provide such guidance. The person, or anyone concerned about the person's rights, can ask the court to request that the guardianship be terminated or, at least, that it be modified to recover some of the rights. Regardless of the powers granted, the guardian of article 81 does not have the authority to force the person under guardianship to comply with certain health care and medications. States require that the person's guardians submit a report on the person's well-being to the court periodically (usually once a year).
Article 81 Guardianships allow the court to “adapt” a court order, granting only the powers that a person needs. The Family Court has similar jurisdiction and authority to those of the County Court and the Surrogate Court when it comes to the guardianship of a minor (a child 17 years old or younger). The AIP lawyer: The court may appoint a lawyer to represent the AIP during the guardianship procedure, or the AIP is free to hire an attorney of its choice. At a guardianship hearing before the Family Court, the court takes a statement about the person seeking guardianship to determine if it would be in the best interest of the child to allow that person to assume responsibility for the child's care.
In New York State, there are generally two different types of adult guardianships, each designed to serve specific populations. Anyone who is concerned about the welfare of another person can apply for the guardianship of Article 81.The court is supposed to structure guardianship in such a way that it does not interfere more than necessary in the life of the incapacitated person. If you are the AIP in a guardianship proceeding, you can request that a lawyer be appointed to represent your interests, or you can hire an attorney of your choice. Guardians must follow the court order that names them, as well as state laws, when making decisions on behalf of a person subject to guardianship.
