Guardianship Law

 

 

Connecticut

Conservator – either of estate, of person or both – oversee financial and personal affairs respectively of a person who has been deemed incapable of adequately doing so.

Statute: C.G.S. 45a-644 – 45a-663

Forms:  PC_300 (Petition for Conservatorship)  Additional forms will be required once conservatorship has been granted.  All forms can be obtained from:  http://www.ctprobate.gov/Pages/Probate-Court-Forms.aspx?type=conservatorships

Where to File:  Probate Court in the district where the respondent (the person deemed incapable) resides.

Costs:  $150 filing fee paid by the Conservator.  (additional court costs associated with the conservatorship process may be paid for by the conservator or the respondent’s estate (if conservatorship is granted).

Initial Procedure:

1.       The conservator files a petition with the Probate Court

2.       The respondent is served in person with a notice of the petition no less than 10 days before the hearing

3.       The respondent may appoint counsel if they choose (The Court may also choose to do so)

4.       A hearing is held in Court to determine if conservatorship is appropriate.

 

Evidence the Conservator Must Present:  An evaluation from a medical doctor, psychiatrist or psychologist attesting to the respondent’s limitations.  (May be waived by the court)

 

Legal Standard:  The respondent is incapable of adequately managing their affairs and appointing a conservator is the least restrictive means of intervention.

Factors the Court will Consider:

1.       The abilities of the respondent

2.       The respondent’s capacity to understand and articulate an informed preference regarding the care of his or her person or the management of his or her affairs

3.       Any relevant and material information obtained from the respondent

4.       Evidence of the respondent’s past preferences and life style choices

5.       The respondent’s cultural background

6.       The desirability of maintaining continuity in the respondent’s life and environment

7.       Whether the respondent had previously made adequate alternative arrangements for the care of his or her person or for the management of his or her affairs

8.       Any relevant and material evidence from the respondent’s family and any other person regarding the respondent’s past practices and preferences and

9.       Any supportive services, technologies or other means that are available to assist the respondent in meeting his or her needs.

 

Limitations on Conservator’s Authority:  Court will award the conservator the least amount of authority necessary to assist the respondent in meeting their basic needs.

Documentation Requirements for the Conservator:

1.       Filing of an initial report and inventory of the respondent’s assets

2.       Filing an annual report to the court

3.       Filing a final report when the conservator has been removed or discharged from their role.

 

Additional Resources:  Probate Court User Guide for Conservators – can be obtained from: http://www.ctprobate.gov/Documents/User%20Guide%20-%20Conservators.pdf

** Not to be confused with Guardianship, which deals with persons with an intellectual disability who are deemed totally incapable of meeting their needs.( Statute:  45a-669 – 45a-683)**

 


New York

Guardian – appointed when court deems that it is necessary to provide for personal and/or financial needs of person and person either agrees or is deemed incompetent or “incapacitated”.

Statute:  N.Y. MHY. Law Section 81.02 – 81.38

Initial Forms/Documentation Required:

1.       Request for Judicial Intervention

2.       Order to Show Cause

3.       Verified Petition

 

Where to file:  Supreme Court in NYC or county courts

Initial Costs:  $95 for the cost of requesting a Judicial Intervention and $210 for obtaining an “index number”.

Initial Procedure:

1.       The guardian files a petition with the Supreme Court

2.       The incapacitated person is served in person no less than 14 days before the hearing, with a notice of the petition, order to show cause and any medical documents or records being used as evidence.

3.       A court evaluator will inspect the respondent’s file

4.       The incapacitated person may appoint counsel if they choose (The Court may also choose to do so)

5.       A hearing is held in Court to determine if guardianship is appropriate within 28 days of signing the order.

6.       The decision of the Court will be rendered within 7 days of the hearing and commission to the guardian will be rendered within 15 days of the decision.

 

Evidence/Information the Conservator Must Present in the Petition:

1.       an explanation of the functional level of the person alleged to be incapacitated

– income adequacy and spending patterns

– adequacy of food, clothing, shelter, hygiene

– physical functioning

– access to helpful resources

– satisfaction with circumstances

– emotional factors

– mental status

2.       the reasons for the guardianship

3.       the available alternative resources that have been explored

4.       the particular powers sought and their relationship to the functional level of the person

5.       the proposed guardian and the reasons why the proposed guardian is suitable

 

Legal Standard:  Incapacity requires clear and convincing evidence that a person is

likely to suffer harm because:

1. the person is unable to provide for personal needs or unable to manage property and

financial affairs; and

2. the person cannot adequately understand and appreciate the nature and consequences of

such inability.

Factors the Court will Consider:

1. An assessment of the person’s:

– ability to manage the activities of daily living

– ability to understand and appreciate the nature and consequences of any inability to manage the activities of daily living

– preferences, wishes, and values with regard to managing the activities of daily living;

– ability to manage property and financial affairs

2.  An Assessment of:

– the extent of the demands placed on the person by that person’s personal needs and property and financial affairs

– any physical illness, mental disability, alcoholism or substance dependence and the prognosis of such illness, disability or dependence

– any medications with which the person is being treated and their effect on the person’s behavior, cognition and judgment

 

Limitations on Guardian’s Authority:  The Guardian may not consent to the voluntary formal or informal admission of the incapacitated person to a mental hygiene facility under Articles 9 or 15 of the Mental Hygiene Law or revoking Powers of Attorney, Do Not Resuscitate Orders, Health Care Proxies or Living Wills which express the wishes of the incapacitated person with respect to healthcare.

 

Documentation Requirements for the Guardian:

1.       Filing of an initial report and inventory of the incapacitated person’s assets

2.       Filing an annual report to the court

3.       Filing a final report when the guardian has been removed or discharged from their role.

 

Additional Resources:  Guide to Adult Guardianship – can be obtained from: http://www.ocfs.state.ny.us/ohrd/materials/151670.pdf

** Not to be confused with a Section 17-A Guardianship, which deals with persons who are deemed “mentally retarded or developmentally disabled”.( Statute: N.Y. MHY. Law Section 17 )**

 


Other States:

The framework for guardianship law is fairly similar from state to state.  You can usually find helpful information and guides, as provided above, by visiting the website for your state’s probate or other court system.

Below is a link to a resources which lists, state by state, the various terms used for Guardianship, which is important as every state is different.  What is “Guardianship” in one state may be “Conservatorship” in another and the alternative may mean something very different.  Most states also have different levels of guardianship; ranging from full guardianship for the severely disabled to partial guardianship to cover a certain aspect of adulthood, such as managing finances.  It is important to know which type of guardianship you are looking for.

https://secure.ssa.gov/poms.nsf/lnx/0200502300