As people age, they may experience cognitive decline or physical changes and need someone to care for them. In some cases, it may be necessary for legal guardians to perform these duties.
A legal guardian is an individual often appointed by the court who has the authority to make crucial life decisions on behalf of an alleged incapacitated person (AIP), such as choosing where to live, arranging medical care and managing finances. In New York, a guardian must be at least 18 years old and a legal U.S. resident or citizen. The court will consider additional factors, such as the prospective guardian’s criminal background and the ability to care for the AIP.
The process of becoming a guardian in New York is complex, time-consuming and expensive, and there is no guarantee that the court will rule in your favor. In some situations, the judge may appoint a third party who is a stranger to the family to be the guardian. In cases involving an older AIP, the judge may avoid appointing the individual’s adult children as the guardian due to financial conflicts, sibling rivalries or a person’s inability to handle the responsibility.
In situations involving adults, you must file a petition and provide sufficient evidence that legal guardianship is necessary. Additionally, you will need to attend a hearing and supply evidence regarding the individual’s incapacitated condition.
Establishing a trust can help all parties avoid the legal guardianship process. A trust allows you to make a private and potentially more flexible legal arrangement by allowing a designated individual to make decisions on behalf of the AIP. This process eliminates the need for court involvement and the appointment of a guardian.
The advantages of a trust over legal guardianship include:
A trust provides additional asset management and distribution flexibility, as the grantor (the individual who creates the trust) can precisely determine how and when the beneficiaries receive the AIP’s assets at the appropriate time.
Some types of trusts can safeguard the assets against creditor claims and lawsuits.
Assets in a trust are not subject to probate, which is a court-supervised process for managing a deceased individual’s estate.
Trusts remain private and are not part of the public record.
Ettinger Law Firm is a New York-based law firm with extensive trust experience. We recognize that caring for another individual is an emotional area — especially when it involves a family member. Our approach focuses on educating our clients and making the legal process easier to understand. You will be able to make these crucial life decisions without feeling rushed or pressured.
With 12 conveniently located offices in New York, you will have the comfort of working with a local attorney who has your best interests in mind.
Learn more about the advantages of selecting Ettinger Law Firm for trust and estate planning in New York. Take the next step by contacting us online to schedule your free consultation.
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At Ettinger Law Firm, our elder law lawyers focus on the needs of older adults in New York when protecting their families, assets and future. We recognize that many of our clients have minimal or no experience working with attorneys — our low-pressure approach enables you to make these crucial life decisions at your own pace. Trust our team to educate you and make the information you need accessible throughout the process.
Contact us today to learn more or schedule a No-Cost Consultation for elder law estate planning.
