The Surrogate will generally appoint a guardian when there is an individual with an interest in the estate who is under disability. The term disability, in the context of Surrogate’s Court proceedings, is used to describe someone who is unable to make decisions for themselves or unable to adequately protect their own rights. Both the probate petition and administration petition specifically ask for a list of those individuals who may be under disability. The Surrogate’s Court considers the following as disabled: minors, incapacitated individuals, incarcerated individuals, or someone who is developmentally disabled. If any such individuals have an interest in the estate, the court will automatically appoint a guardian ad litem.
The guardian ad litem is assigned by the Surrogate to protect the disabled individual’s rights and interests in the estate proceeding. A guardian ad litem is usually an attorney and is only responsible to help the individual resolve the court case; they will appear in court, investigate the proceedings, discuss the case with the parties involved, and report to the Surrogate’s Court. A guardian ad litem does not have the authority to manage personal matters. The Surrogate’s court may also ask the guardian ad litem for their recommendation as to what they believe is best for the disabled individual.
The Surrogate’s court may also appoint a guardian to make life decisions for an individual, manage the individual’s assets, or both. The need for a guardian commonly arises where a child is inheriting assets from the estate and the court wants to ensure the child’s assets are preserved and protected or where a developmentally disabled adult cannot make their own decisions. In such circumstances, a surviving parent or relative may petition the Surrogate’s court to become the guardian of the child or developmentally disabled adult. We can help you petition the court so that you may become the guardian, rather than an unrelated and unfamiliar third-party.
It is important to have attorneys who understand guardianship proceeding and that can work with the Surrogate’s Court to arrive at a resolution and have a guardian appointed. We will work closely with you to ensure we understand your needs and goals, as well as the needs of the individual you are seeking to become guardian of.
The attorneys at James G. Dibbini & Associates, P.C. have over 20 years of experience in Wills, Trusts & Estates.
In order to learn more about Guardianships or you have a Wills, Trusts & Estates matter you would like to discuss, please feel free to contact our office directly at (914) 965-1011.
