New York Estate Planning & Elder Law Blog
Following the recent documentary, Framing Britney Spears, as well as the increased media focus on the matter, Brittney Spears has become a common subject of conversations in 2021. It’s not Spears’ music this time that’s making headlines, though, it’s Spears’ conservatorship.
In 2008, Spears’ father was appointed conservator for Brittney’s financial and personal decision. Over a decade later, a professional fiduciary was appointed to assume Mr. Spears’ position due to health issues the elder Spears currently faces.
Based on allegations, Ms. Spears’ conservatorship still exists but Ms. Spears no longer wants her father to function in such a role. Following a February 2021 hearing, a judge decided that Ms. Spears’ father as well as the professional fiduciary would share conservator roles.
Even though New York state no longer appoints conservators, it’s still important to understand the role that both conservators and guardians play. As a result, this article reviews some critical facts that you should understand these roles in New York state.
# 1 – How Is a Guardian Appointed
A guardian is appointed in an official proceeding in which it is determined how the guardian will help a person meet their personal needs. In New York, a person need not be found incompetent to have a guardian appointed, but instead must be found to have incapacities.
Selecting a guardian begins with a petition that informs the court what difficulties the person is facing and why a guardian must be appointed. If the court determines that a need for a guardian exists, an order for a hearing is signed.
During the hearing, the person seeking the appointment of a guardian must establish through clear and convincing evidence that the person is likely to experience harm because the person cannot provide for his or her personal needs and manage his or her property. If these details can be established, the court will appoint a guardian.
# 2 – What a Guardian Can Do Following an Appointment
Courts rely on a document referred to as an Order and Judgment to establish the length of a guardianship as well as the scope. The incapacitated individual retains all powers not granted in the Order and Judgment. New York law, however, places some limits on a guardian’s ability to consent to treatment as well as to change a person’s residence. The ability to alter a person’s residence is often contingent on a guardian’s ability to obtain court approval.
# 3 – Who Can Act As a Guardian
A guardian can be either a relative or professional. The wants of the incapacitated individual are assessed when appointing a guardian. Additionally, courts will inquire about whether any conflicts of interest exist between the potential guardian and incapacitated individual. In cases where the incapacitated individual has no relationships to act as a guardian, an independent professional might be appointed.