The following discusses issues relating to New York Article 17A Guardianship proceedings. It does not constitute legal advice and addresses issues only generally. Each situation is different and requires a specific legal analysis.
When children are young, parents are able to make important decisions for them, including most healthcare and financial decisions. If your child has been intellectually or developmentally disabled since before becoming adult, either because they were born disabled or, for example, suffered a brain injury while young, you may need to be appointed Guardian once your child turns 18 or 22, depending on the nature of their disability. Below are some common questions and answers about the guardianship process.
My Child has Been Disabled Since Birth - What Kind of Guardianship Do I Need?
In New York, there are two different guardianship procedures, usually referred to by the statutes that govern them. One is for people who have been intellectually or developmentally disabled from birth or since before they turned 18, such as someone born with Down syndrome or severe autism. This is an Article 17A Guardianship. Another is for people who once were competent adults but are no longer competent, such as a person who developed dementia later in life – called an Article 81 Guardianship. This post discusses only Article 17A Guardianships.
Article 17A Guardianships are governed by Article 17A of NY's Surrogate's Court Procedure Act. Article 17A used to refer to people as mentally retarded, but since 2016 the statute has used the terms intellectually disabled and developmentally disabled. Medical professionals and the court determine which category someone falls into.
I've Been Caring for my Child her Whole Life - Why do I Need to Become Guardian?
When a child is intellectually or developmentally disabled, and incapable of making decisions for herself, parents often assume that their right to make decisions continues after the child turns 18. But this is not the case. In New York, all people are presumed to be legally competent adults once they reach age 18. That means they are presumed to be able to make their own decisions about finances, medical care and living arrangements, no matter how severely disabled they are. Parents must seek court approval to act as the legal guardian of their adult disabled child.
My Child is 30 Years Old - Is it Too Late to Become Guardian?
While it is preferable to obtain an Article 17A Guardianship as close as possible to someone turning 18, it does not matter how much older they are. We have assisted parents whose children were middle aged before they applied to become a 17A Guardian.
Can Only One Parent be Guardian?
Parents can apply together to become co-guardians, sharing responsibility.
Who Can Become a Guardian?
Parents are not the only people who can become Article 17A Guardians. Some incapacitated people don't have parents who are willing or able to act a guardian and Article 17A proceedings are not limited to parents.
How is an Article 17A Guardianship Started?
Article 17A proceedings are filed in Surrogate's Court and there is a standard set of forms used to start the proceeding. The court filing fee is low (currently $20) and there is not a lot of ongoing involvement of the court after a 17A Guardianship is granted.
The court will usually want to meet the incapacitated child and, unless there is a compelling reason why they can’t attend, the child will be expected to be present at the hearing.
When the evidence is clear that the child needs a guardian and all family members agree on what's best for them, an Article 17A proceeding can often be completed with only one court hearing.
What Decisions Can a Guardian Make?
If approved by the court, an Article 17A Guardian can make all decisions for their child, including all healthcare, financial and personal decisions. Guardians can also be appointed with limited authority over some but not all decisions.
What Role do Doctors Play?
Medical and psychological evidence is very important in an Article 17A proceeding so the court can be sure the person truly needs a guardian. A medical doctor as well as a psychologist or psychiatrist who knows the incapacitated person needs to complete a form that provides important information to the court. Medical providers do not usually appear at the court hearing, so it's important that the forms are filled out fully and correctly.
Are there Alternatives for Someone who is not Intellectually or Developmentally Disabled?
If someone is not developmentally or intellectually disabled, but still wants or needs assistance with financial and medical decisions, a power of attorney and health care proxy may be appropriate.