Guardianship is a powerful legal tool designed to help adults who are unable manage their affairs due to age, illness, or disability. Let’s delve into a clearer understanding of the guardianship process in the Empire State.
You may be familiar with the concept of guardianship for minor children, but New York also recognizes guardianship for adults if they are incapacitated, or intellectually or developmentally disabled.
Article 81 Guardianship
Cases involving an incapacitated adult are known as Article 81 guardianships. With Article 81 guardianships, the individual may be unable to care for their personal needs or manage their property and financial affairs because of physical or mental health issues. A court-appointed guardian can assist in managing these needs, with the intention of supporting the individual in leading a fulfilling life. This process seeks to respect the dignity and rights of the person, ensuring they receive the care they need while retaining as much independence as possible.
Article 17-A Guardianship
In New York, when a person turns 18, they are generally expected to make personal, medical, and financial decisions for themselves. However, this can pose challenges for those with intellectual or developmental disabilities.
An Article 17-A guardian can be appointed by a Surrogate Court judge to help an intellectually or developmentally disabled adult. This role entails a significant responsibility and is usually held by a parent, guardian, or close family member. This is generally a last resort when other options for decision-making assistance are insufficient since an Article 17-A guardianship is the most restrictive type in New York, and includes most decisions that a parent would typically make for a child. For this reason, it is recommended to explore less restrictive options that might better protect the individual while maintaining some degree of autonomy.
The Guardianship Process
The guardianship process begins when a concerned family member, friend, or adult care agency files a petition with the court. For Article 81 guardians, under New York State law, the adult alleged to need a guardian is entitled to be represented by a lawyer that they have chosen. The court then reviews the petition, appoints a court evaluator to investigate the need for guardianship, and holds a hearing to decide whether guardianship is appropriate.
For Article 17-A, the entitlement to counsel is unclear. However, the court may decide to appoint a guardian at litem, which is an attorney who performs a similar role to the court evaluator in Article 81 cases. Depending on the circumstances, the court may also decide not to hold a hearing in Article 17-A case.
Article 81 guardianships are permanent and can only be terminated through a motion process in court if circumstances change (for example, if the guardian is no longer able to perform their duties), which is rare. Article 17-A guardianships, on the other hand, are terminated upon request of the adult under guardianship (or a representative) who must then prove that the guardianship is not in their best interests.
The Guardian’s Role
In most cases, the appointed guardian must complete training and be approved by the court. The judge ultimately determines the scope of the guardianship, and the guardian is responsible for making decisions that are in the best interest of the incapacitated or disabled adult.
The guardian’s role is varied and important. The guardian’s duties can include managing financial affairs, arranging for medical care, dealing with tax issues, ensuring that the individual’s living conditions are maintained, among others. The guardian is required to visit the adult under guardianship a certain amount of times per year and must also file reports with the court.
Risks of Guardianship
Guardianship, while a significant protective measure, can also come with certain risks. The person under guardianship can potentially lose significant rights and independence, such as the rights to make personal healthcare decisions, control property and financial affairs, or decide where to live.
Additionally, there is a risk of exploitation if the guardian does not act in the best interest of the person under guardianship. That’s why it is crucial for courts to carefully screen and monitor guardians.
This is why it’s often encouraged to consider less restrictive options first, such as power of attorney, health care proxy, or supported decision making, which can provide necessary support while preserving more of the individual’s autonomy. In all situations, the best interest of the individual should be at the forefront of any guardianship discussion.
Guardianship is both a significant responsibility and an act of profound care. Guardianship can be a way for individuals who cannot fully care for themselves to receive the support they need. Throughout New York, these protective measures are vital parts of our community fabric. They ensure that everyone, no matter their circumstances, has someone looking out for their best interests.
While this overview is a helpful starting point, every case is unique. Therefore, it is a good idea to seek the advice of an experienced New York elder law attorney while you contemplate guardianship in New York. With an attorney’s expert guidance, you will have the reassurance that you are taking the right steps to protect your loved one’s dignity and well-being.
If you are considering guardianship for a loved one, or have more questions about the guardianship, The Chamberlain Law Firm is here to serve the community of Rockland County and beyond. Set up a consultation through our website, or by calling us at (201) 273-9763.