Guardianship allows a family member or another responsible adult or entity to make important life, healthcare or financial decisions for someone who is unable to make these decisions alone, whether due to functional incapacity or developmental or intellectual disability. Because guardianship removes autonomy from an incapacitated person or person with a developmental or intellectual disability and gives it to the court-appointed guardian, it can be a sensitive issue. However, guardianship can be a necessary tool to assist people who cannot make important decisions independently, and can also protect them from harm.
At Dizon & Shedden, P.C., we have extensive experience handling guardianship matters for those seeking guardianship, as well as those who wish to contest it. We have represented numerous hospitals, nursing homes, and individuals in their petitions for guardianship, and have also been appointed by the Courts to represent allegedly incapacitated individuals. We have also served as neutral Court Evaluators tasked with investigating the allegations in guardianship petitions and submitting reports and recommendations to the Courts to aid in determining whether guardianship is appropriate. We have built a reputation for providing compassionate, empathetic and insightful advocacy, regardless of the nature of our role in the guardianship proceeding.
In New York, there are primarily two vehicles through which guardianship may be obtained over another individual. A Mental Hygiene Law Article 81 guardianship applies to adults who are alleged to be functionally incapacitated due to illness or another medical or mental condition that prevents them from being able to care for their personal and financial affairs. A Surrogate’s Court Procedure Act Article 17-A guardianship is intended for minors or adults diagnosed with a developmental or intellectual disability. Oftentimes, parents who have a child living with such disabilities will seek to be appointed guardian when their child is approaching 18, so that they can continue to make decisions for their child even into adulthood.
For an Article 81 Guardianship, the Petitioner (the person or entity seeking the guardianship) starts the proceeding by filing a petition with the appropriate County Court or Supreme Court, which will generally schedule a hearing to take place within 28 days. At the hearing, the Petitioner has to prove that the guardianship is necessary to provide for the personal needs and/or property and financial affairs of the person that is allegedly incapacitated (the “AIP”). The Petitioner also must prove that the AIP either agrees to the guardianship or is incapacitated. The law sets out the standard for finding that someone lacks capacity. Specifically, the Court has to find, based on clear and convincing evidence, that a person is likely to suffer harm because they are unable to provide for their personal needs and property management, and cannot adequately understand and appreciate the nature and consequences of their limitations.
If the Court decides that a guardianship is necessary, it will grant the guardian the powers necessary to care for the incapacitated person, or IP. The court will tailor the guardian’s powers to the needs of the IP.
Under Article 17-A of New York’s Surrogate Court Procedure Act, a guardian may be appointed for a person who is intellectually and/or developmentally disabled, if the Surrogate Court determines it is necessary and in the person’s best interests. This type of proceeding is diagnosis-driven, meaning that the petition needs to accompanied by the certification of two physicians, or a physician and psychologist, attesting to the individual’s intellectual and/or developmental disability.
An Article 17-A guardianship can be brought for a disabled minor or adult. In the case of a disabled minor approaching their 18th birthday, oftentimes an Article 17-A guardianship is an important tool for the parent(s). In New York, once a person turns 18, they are assumed to be able to make decisions for themselves. However, if appointed as their child’s Article 17-A guardian, the authority that the parent is given is similar to the authority the parent exercised over the life of their child before they turned 18.
In deliberating on a petition for 17-A guardianship, the Court considers, among other things, the emotional, physical, and intellectual needs of the person, and the limitations imposed on the person as a result of their disability. The person who is proposed as guardian must be a suitable person of appropriate character, and should not have interests that are adverse to those of the disabled person. A proposed guardian must always be capable and committed to promoting the best interests of their ward.
Unlike a Mental Hygiene Law guardianship, guardianship under Surrogate’s Court Procedure Act Article 17-A is not tailored to the person’s specific needs. The court will usually grant the guardian all powers available, and the guardian will be able to take almost all necessary actions on behalf of the IP.
At Dizon & Shedden, P.C., we understand that guardianship matters can present with legal complexities, and may also be stressful and emotionally taxing for families. We combine our legal expertise with compassionate advocacy to help achieve an outcome that ensures loved ones are protected with their best interests in mind.