ARTICLE 6 : Guardians
(provided by Divorce Source, Inc.)
Published 6.5.98

New York Domestic Relations Law Contents

Section 80. Guardians in socage.
Section 81. Appointment of guardians by parent.
Section 82. Powers and duties of such guardians.
Section 83. Duties and liabilities of all general guardians.
Section 84. Guardianship of a married minor.
Section 85. Investment of trust funds by guardian.

Sec. 80. Guardians in socage. Where a minor for whom a general guardian of the property has not been appointed shall acquire real property, the guardianship of his property with the rights, powers and duties of a guardian in socage belongs:

(1) to the parents jointly, or, if they be separated, or divorced, to the parent who has been given the custody of the minor by a decree of court, or in the absence of such a decree, to the parent having the actual custody of the minor;
(2) if one of the parents be dead, to the sole surviving parent;
(3) if there be no father or mother, to the nearest and eldest relative of full age, not under any legal incapacity.
The rights and authority of every such guardian shall be superseded by a testamentary or other guardian appointed in pursuance of this article or in pursuance of article ten of the surrogates court act.

Sec. 81. Appointment of guardians by parent. A married woman is a joint guardian of her children with her husband, with equal powers, rights and duties in regard to them. Upon the death of either father or mother, the surviving parent, whether of full age or a minor, of a child likely to be born, or of any living child under the age of eighteen years and unmarried, may, by deed or last will, duly executed, dispose of the custody and tuition of such child during its minority or for any less time, to any person or persons. Such surviving parent may appoint a guardian or guardians of the person and of the property of the infant and in making such appointment shall not be limited to the appointment of the same person or persons in both capacities. Either the father or mother may in the life-time of them both, by last will duly executed, appoint the other the guardian of the person and property of such child, during its minority. Either the father or mother may in the life-time of them both by last will duly executed, and with the written consent of the other duly acknowledged, appoint the other and a third person to be the guardians of the person and property of such child during its minority, and in making such appointment shall not be limited to the appointment of the same person or persons in both capacities. Such consent must have as part thereof a sworn statement that the consenting parent in so consenting, is motivated solely by the welfare of the child or children, the guardianship of whom is the subject of such consent, and that such consenting parent has not received and will not receive any consideration for such consent, and such consent may be revoked by such consenting parent at any time prior to the death of the other, by filing in the office of the county clerk of the county in which said other then resides, a written revocation of such consent, subscribed and acknowledged by the person so revoking, with proof of service of a copy thereof on such other parent in the manner provided for service of a summons. An appointment of a guardian of the person and property of an infant made by duly executed last will of his father or mother shall be valid and effective if at the time the will is admitted to probate the other parent shall have died or the surviving parent be an adjudicated incompetent. If both parents die under circumstances which render it difficult or impossible to determine which of them died first and both of them left last wills appointing the same person as guardian, the appointment shall be valid and effective. If both parents die under circumstances which render it difficult or impossible to determine which of them died first, leaving last wills appointing different persons as guardians, the surrogate`s court shall determine which of the appointments will best serve the welfare of the child and issue letters of guardianship accordingly. If at any time during the minority of the infant the surviving parent becomes competent to serve as guardian, he may apply to the court which issued letters of guardianship to the guardian appointed by will for a decree revoking such letters and the court shall on such application make such order or decree as justice requires. A person appointed guardian in pursuance of this section shall not exercise the power of authority thereof unless such will is admitted to probate, or such deed executed and recorded as provided by SCPA 1710.

Sec. 82. Powers and duties of such guardians. Every such disposition, from the time it takes effect, shall vest in the person to whom made, if he accepts the appointment, all the rights and powers, and subject him to all the duties and obligations of a guardian of such minor, and shall be valid and effectual against every other person claiming the custody and tuition of such minor, as guardian in socage or otherwise. He may take the custody and charge of the tuition of such minor, and may maintain all proper actions for the wrongful taking or detention of the minor, and shall recover damages in such actions for the benefit of his ward. He shall also take the custody and management of the personal estate of such minor and the profits of his real estate, during the time for which such disposition shall have been made, and may bring such actions in relation thereto as a guardian in socage might by law.

Sec. 83. Duties and liabilities of all general guardians. A general guardian or guardian in socage shall safely keep the property of his ward that shall come into his custody, and shall not make or suffer any waste, sale or destruction of such property or inheritance, but shall keep in repair and maintain the houses, gardens and other appurtenances to the lands of his ward, by and with the issues and profits thereof, or with such other moneys belonging to his ward as shall be in his possession; and shall deliver the same to his ward, when he comes to full age, in at least as good condition as such guardian received the same, inevitable decay and injury only excepted; and shall answer to his ward for the issues and profits of the real estate, received by him, by a lawful account, to be settled before any court, judge or surrogate having authority to settle the accounts of general and testamentary guardians; and any order, judgment or decree in any action or proceeding to settle such accounts may be enforced to the same extent, and in like manner as in the case of general and testamentary guardians. If any guardian shall make or suffer any waste, sale or destruction of the inheritance of his ward, he shall lose the custody of the same, and of such ward, and shall be liable to the ward for any damage caused thereby.

Sec. 84. Guardianship of a married minor. The lawful marriage of a person before he or she attains majority terminates a general guardianship with respect to his or her person, but not with respect to his or her property.

Sec. 85. Investment of trust funds by guardian. A guardian holding funds for investment has the powers provided by section twenty-one of the personal property law and must not invest the funds in any other securities or manner.


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