While it is always better to plan ahead by executing planning documents such as a financial power of attorney, health care proxy, and living will, there may be times when an individual has failed to do so and loses capacity to carry out his or her wishes or maybe the individual has executed the necessary planning documents, but they do not include the comprehensive powers required for the individual’s well-being. In the absence of the necessary advance directives or if the advance directives do not include the necessary powers, it may be necessary to apply to the court to appoint a guardian.
So what is guardianship? Guardianship is a legal arrangement where a court gives a person the legal right to make decisions for another person who is unable to handle their personal affairs or manage their financial affairs or property, usually due to a mental or physical disability. In New York, depending on the type of guardianship asked for and the person over whom guardianship is requested, the case is handled by the Supreme Court or the Surrogate’s Court.
Article 17 – A Guardianship in New York:
An Article 17-A Guardianship is available only for individuals who are “intellectually disabled or developmentally disabled” and is brought in Surrogate’s Court. In New York State, when a person becomes 18 years old they are assumed to be legally competent to make decisions for themselves. This means no other person is allowed to make a personal, medical or financial decision for that individual. If an “intellectually disabled or developmentally disabled,” individual has difficulty making decisions for themselves and are 18 years old or older, you can ask the Surrogate’s Court to appoint a guardian for him or her.
In order to begin a guardianship under 17-A, a certification from one physician and one psychologist or two physicians must be filed with the petition certifying that the person has a disability and is not able to manage his or her affairs because of intellectual disability, developmental disability or a traumatic head injury. The Surrogate’s Court can appoint a guardian of the person, the property or both.
An Article 17-A Guardianship is very broad and covers most decisions that are usually made by a parent for a child such as financial and healthcare decisions. Once a guardian is appointed, the appointment is typically for the life of the intellectually disabled or developmentally disabled individual. Additionally, there is a requirement to file an annual accounting with the Surrogate’s Court when a guardian of the property is appointed for an individual with a disability.
Article 81 – Guardianship in New York:
An Incapacitated Person (AIP) is someone who needs some help to care for themselves or manage their property or financial affairs. This kind of guardianship case is brought in the Supreme Court. Unlike an Article 17-A Guardianship, an Article 81 Guardianship does not require a doctor’s certification. An Article 81 Guardianship begins with the filing of a petition and Order to Show Cause.
Article 81 is specific to what decisions are made by the guardian and what decisions are made by the person with the disability. Once a petition and Order to Show Cause for guardianship has been filed, the Judge will appoint a court evaluator. The court evaluator will meet with the AIP, investigate, and report whether or not a guardian should be appointed and, if so, what powers the guardian should have. The Court will always hold a hearing. Testimony will be taken by the Court at the hearing and therefore, it may be wise if a lawyer handles this kind of guardianship case.
Guardianship can be a complex process. It is best to speak with an attorney to learn all of your options before filing. If you or someone you know would like to learn more about the guardianship process, contact our office.