Child Guardianship (Article 17)

Surrogate’s Court Procedure Act (“SCPA”) Article 17 Guardianship proceedings are used to have a guardian appointed for a minor (a child under the age of 18).

These types of guardianship proceedings generally arise when both parents of the minor are either deceased or unable/unwilling to care for the minor. They are most frequently handled in Surrogate’s Court, but can also be handled in Family Court under certain circumstances.

If the minor’s parents designated an individual to be the minor’s guardian in their Will, such person will generally be appointed as the minor’s guardian unless they are found to be unfit. If the minor’s parents did not designate anyone, an appropriate person can seek to become the minor’s guardian. If there is no objection to the Guardianship petition, the process is handled primarily through correspondence with the Court and requires a maximum of one court appearance at which time the guardian is appointed.

If a minor has any income or assets, a guardian of the property is necessary. A guardian of the property is responsible for depositing the minor’s funds into a bank account that is jointly held by the guardian and the clerk of the court. Money cannot be withdrawn without court order and an annual report is due to the court each January. Upon reaching the age of 18, the child receives all fund being held by the guardian.  For these reasons, many parents of minor children pursue the option of a Trust, which allows their child’s funds to be managed without such strict court oversight and allow them to delay their child’s inheritance beyond age 18.

If the minor does not have any income or assets, a guardian of the person is all that is necessary. This person will have custody of the child and have authority to make medical, educational, religious and other important decisions for the child.

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