Britney Spears made headlines with an online campaign that seeks to end the conservatorship (guardianship) of the controversial pop star. A judge, in early 2008, ordered a conservatorship with her father and a lawyer as the conservators of her estate. While the following matter does not, directly, deal with New York Law, since this matter is occurring in California, the general principles discussed hold true for most States. The explanation below is the basics of New York Guardianship Law. We shall have followup articles in the near future, please check back often or subscribe.
The terms “conservatorship” and “guardianship” are, often, used interchangeably. However, in many States the terms are used in different contexts. New York utilizes a Guardianship System, which is described in Article 81 of Mental Hygiene Law of New York.
Test to Determine Incapacity under NY’s Guardianship Law
A New York judge has authority to appoint a guardian if the subject of the guardianship is “Incapacitated” or “agrees to appointment” of the guardian.
The test to determine incapacity is setup specifically in Article 81 of NY’s Mental Hygiene Law. The test requires a judge in New York to consider if:
- the person is unable to provide for personal needs and/or property management; and
- the person cannot adequately understand and appreciate the nature and consequences of such inability.
NY Guardianship Law specifies a list of items for the judge to consider in determining the aforementioned. A NY judge should consider:
- ability to do daily activities;
- understanding of inability to manage daily activities;
- preferences with regard to managing daily activities;
- nature and extent of property/assets and ability to manage;
- mental disability, alcoholism, substance abuse;
- demands placed on individual because of needs and financial ability to manage;
- medications effect on behavior, cognition and judgment;
- functional level; and
- understanding and appreciation of the nature and consequences of the functional limitations.
New York Guardian Powers
The following powers and duties are, typically, granted to the guardian in New York:
- Pay the bills for the incapacitated utilizing the assets of the incapacitated;
- Stop any financial or physical abuse of the incapacitated;
- Prevent self-neglect;
- Appoint caregivers;
- Make Gifts;
- Provide support for those taking care of the incapacitated;
- Make financial decisions for the incapacitated;
- Defend judicial actions; and
- A variety of others acts are deemed suitable by the court.
In most cases, the guardian, in New York, must also file an initial report, within ninety days of appointment as guardian, which includes a brief summary of the assets and status of the incapacitated. The guardian is required as well to visit the incapacitated, at least, four times per year. At the termination of the NY guardianship, the guardian, in New York, must submit a final report which summarizes and describes the activities of the guardian for the duration of the guardianship.
If you are interested in more information on New York Guardianship Law, please: Schedule a Call with an Attorney.
- Invalidation of Prenuptial Agreements in New York Leads to Equitable Division of Marital Property
- Hiring a NY Lawyer or Law Firm in New York: Due Diligence of NY Attorneys
- Negotiating New York Royalty Agreements
- Defamation Law: Twitter – New York Post Defamation Saga
- Basics of Cryptocurrency Law in New York
- NY’s Daily Fantasy Sports Law Contains Major Flaw