Guardianship of Property Wrongful Death

[seekinghelpny]

What is the name of your state (only U.S. law)? New York
My 32 year old neice died leaving a 10 year disabled child. My sister, mother of neice and grandmother of child, is not capable to care for her. The child is living with my other sister who is in family court seeking custody. The father of the child is in jail until 2017. My sister, mother of deceased niece and grandmother of child, obtained an attorney to file a wrongful death lawsuit on behalf of the child. My sister who is seeking custody does not want to get involved with a lawsuit at this time. She is overwhelmed by caring for a disabled child. She receives public assistance for the child and fears the lawsuit could stop public assistance. Recently the attorney served my sister who is caring for the child with papers to petition Surrogate Court to grant guardianship of the child's property to the child's grandmother. My sister who is caring for the child has not even being given custody yet. Can this attorney do this eventhough the custody of the child is still pending in family court? My sister who is pursuing lawsuit is not capable to manage her own finances, she is in trouble with IRS, and now she wants to takes over the estate of the child.

 

[BlondiePB]

Can this attorney do this eventhough the custody of the child is still pending in family court?

Yes.

My sister who is pursuing lawsuit is not capable to manage her own finances, she is in trouble with IRS, and now she wants to takes over the estate of the child.

Good thing that the grandmother would be guardian of the estate and not your sister who is not guardian of estate material.

 

[ecmst12]

Only the legal next of kin (other parent) or legal guardian could bring action on behalf of the child. Guardian should talk to grandma's lawyer.

 

[ecmst12]

Grandmother IS OP's sister.

 

[seekinghelpny]

Can the mother of my deceased niece, grandmother of child, file a wrongful death lawsuit on her own and leave our sister who is caring for the child out of the lawsuit? What is the advantage of the lawsuit being filed by the child versus the grandmother?

 

[BlondiePB]

Grandmother IS OP's sister.

Good thing the grandmother would be the guardian and not the other sister who has the child now.

 

[ecmst12]

I think a child comes before a mother as far as right to file wrongful death. At worst, both grandma and child would have EQUAL rights to recover for this. Grandma couldn't file without including child in the recovery. Check the other recently active thread on wrongful death.

The deceased's sister doesn't have standing over mom and child and wouldn't be able to bring any action on her OWN behalf, only on the child's. In which case any settlement would go into trust for the child.

 

[BlondiePB]

Can the mother of my deceased niece, grandmother of child, file a wrongful death lawsuit on her own and leave our sister who is caring for the child out of the lawsuit? What is the advantage of the lawsuit being filed by the child versus the grandmother?

As previously stated, only the guardian can file the lawsuit. Should the grandmother be appointed guardian of the estate, she can file the lawsuit and leave your other sister out of it. The child cannot file the lawsuit as she is a minor.

 

[seekinghelpny]

My concern is if my sister, the grandmother, becomes guardian of property, then that includes the public assistance the child is currently receiving. If Dept of Social Services becomes aware of the lawsuit and assignment of guardianship of property away from my sister who has physical custody of the child then could DSS stop the pubilc assistance? I'm afraid that DSS might say if the guardianship of property is not with the person who is caring for the child then that person doesn't need the public assistance.

 

[BlondiePB]

My concern is if my sister, the grandmother, becomes guardian of property, then that includes the public assistance the child is currently receiving. If Dept of Social Services becomes aware of the lawsuit and assignment of guardianship of property away from my sister who has physical custody of the child then could DSS stop the pubilc assistance? I'm afraid that DSS might say if the guardianship of property is not with the person who is caring for the child then that person doesn't need the public assistance.

It is reasonable to presume that the attorney who petitioned for guardian of estate of the child is a GAL. Lawsuits take time. Guardians of persons, especially of a minor child, are allowed monies for the care of the child which can be dispersed via the guardian of the estate via a court order.