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Understanding Guardianship in New York

April 30th, 2013

A guardian is one who is legally entitled to make decisions for another person, such as financial and medical decisions. Guardians are typically appointed for adults with special needs or seniors, when they are unable to care for themselves. In the state of New York, there are two separate processes: Article 17A guardianship is typically used for a developmentally disabled individual and Article 81 guardianship is typically used for a person needing assistance with personal care or financial matters, such as an older person with a progressive illness.

Article 17A Guardianship

When a child with special needs reaches the age of 18, parents will no longer have the right to make decisions for that person, unless an Article 17A guardianship proceeding has been completed. This type of guardianship grants broad authority similar to that held by parents for minor children. A good candidate for an Article 17A guardianship would be a developmentally disabled child approaching the age of 18 whose mental capability is similar to a much younger child.

This type of guardianship was created by Article 17-A of the Surrogate’s Court Procedure Act. It is granted by county Surrogate Courts. If the person needing a guardian is under the age of 18, then the court in the county where the guardian lives is used; otherwise the court in the county where the disabled person lives is used.

Obtaining this type of guardianship is relatively simple. Either two doctors or a doctor and a psychologist must certify that the disabled person needs a guardian. The guardian must also provide information about his or her prior residences. The disabled person and his or her spouse (if any), other parent (if only one parent is seeking guardianship), and any adult siblings are all served with guardianship papers, and a court hearing is held to determine whether guardianship will be granted.

Article 81 Guardianship

When an adult is no longer able to make important life decisions or tend to everyday needs, due to an accident or illness, an Article 81 guardianship may be appropriate. This type of guardianship grants specific, individualized powers to the guardian, according to the needs of the disabled person. This type of guardianship is often used in the case of an older person with Alzheimer’s disease or other dementia.

This type of guardianship was created by Article 81 of the Mental Hygiene Law. It is granted by county Supreme Courts, and is based on the concept of the least restrictive alternative, meaning that only specific types of authority are granted, tailored to the particular needs of the incapacitated person.

In deciding Article 81 guardianship, the court is required to consider alternatives that may better suit the needs of the individual, such as a nursing home, assisted living facility or visiting home health aides to meet the person’s daily needs, or a trustee or payee to handle financial matters. The court may appoint a guardian if it determines that the person cannot provide for personal needs or manage property and financial matters without a guardian and the person is incapacitated or agrees to the guardianship. In the case of a person suffering from the earlier stages of a progressive disease, a court can grant a guardian limited powers that can later be expanded through a modification order.

To learn more, visit www.elderlawnewyork.com or www.specialneedsnewyork.com.

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