Differences Between a Trustee & a Guardian in New York

by Heather Frances J.D. Google
In your will, you can appoint a guardian for your minor children.

In your will, you can appoint a guardian for your minor children.

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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.

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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.

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.