Differences Between a Trustee & a Guardian in New York

By Heather Frances J.D.

If both parents of a minor child die, that child will need someone to take care of him until he becomes an adult, and he will need someone to manage any money or property he inherited. In New York, the child would likely live with a guardian who is appointed to care for him, while a guardian -- or a trustee manages his money or property.

If both parents of a minor child die, that child will need someone to take care of him until he becomes an adult, and he will need someone to manage any money or property he inherited. In New York, the child would likely live with a guardian who is appointed to care for him, while a guardian -- or a trustee manages his money or property.

Trustees

A trustee is the manager of a trust account, frequently one established for the benefit of children whose parents have died. Such trust accounts can be set up in a parent’s will to protect the child’s assets until the child reaches a certain age, also established in the will. Since New York’s Estates, Powers and Trusts Code allows a trust to be created for any legal purpose, there can be a wide variation in the structure and purpose of each trust.

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Appointment and Removal of a Trustee

A trustee is appointed in the documents that create the trust. Trustees have broad authority to operate without heavy court supervision, as long as they are operating within the structure created by the trust’s governing documents, including buying or selling property in the name of the trust. However, if the trustee does not act appropriately in accordance with the terms of the trust, the trust's beneficiaries can ask the court to remove him by court order.

Guardians for Children

New York’s laws on guardians are found in section 81 of New York’s Domestic Relations Code. There are two types of guardians; New York allows the same person to act as both -- guardians over the person of the child and guardians over the property of the child. The child will live with the guardian over the person, much like a substitute parent, but the guardian over the property manages the child’s assets. Unlike trustees, guardians over the property of a child are heavily supervised by the New York courts, and must file annual reports and request permission from the court when spending the child’s money in an unusual way. If you appoint a guardian for your child in your will, the guardian will not have any authority to act until your will is admitted to probate.

Guardians for Adults

A guardian may also be needed for an incapacitated adult, such as someone with severe dementia, but the process is more complicated and requires a special court proceeding. In such cases, a petition must be filed with the New York court and notice of the case must be provided to the adult’s family members. The court will appoint an evaluator to investigate the situation then hold a hearing to determine whether a guardian should be appointed and who that person should be. A guardian of an incapacitated adult is usually required to post a bond and is supervised by the court.

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The Difference Between a Guardian & Trustee in Texas

References

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Can People With Legal Guardianship Take Children Out of State?

Guardianship is a legal arrangement established by a court in which a nonparent takes over the responsibilities of caring for a child. While a court may appoint a guardian if a child's parents are deceased, in many situations, the parents are simply unable to care for the child due to illness or substance abuse, or are unavailable for long periods of time due to military service or other work-related responsibilities. Guardianship generally terminates when the child reaches the age of 18, but may continue after that time if the child is mentally or physically disabled.

Is Guardianship Required in Florida?

Florida law requires a guardianship in two situations: when the parents of a minor child die or become incapacitated such that they are unable to care for the child; and when the child acquires property that exceeds $15,000, such as through an inheritance or insurance settlement. In each instance, the court must appoint an adult as guardian for the child. The guardianship is supervised by the court and remains in effect until the child reaches age 18 or unless earlier terminated by the court.

Roles of a Trustee

A trustee manages property for beneficiaries according to the terms of a trust. Generally, a trustee is appointed by a person, called a grantor or settlor, who establishes and funds the trust. The settlor transfers legal title of assets to the trustee so she may manage and distribute them for named beneficiaries. A trustee's role includes responsibly and honestly handling trust assets and ensuring the purpose of the trust is carried out.

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