In New York, parents of persons with intellectual or other developmental disabilities are considered their child’s Guardians until the age of 18. Once a child reaches that age, the parents no longer have the authority to manage their child’s affairs, as the child is considered to have become a legally competent adult and able to manage their own affairs.
Guardianship is a legal proceeding in which a New York Court appoints a Guardian – be it a parent or third party – to exercise the legal rights of individuals who lack the basic physical or cognitive skills to manage their own personal and/or financial needs.
There are two types of Guardianships in New York: Article 17A and Article 81.
Article 17A Guardianship
Article 17A Guardianship was created to simplify the practice and procedure of obtaining Guardianship for people who are considered to be ‘developmentally disabled’. This ‘disability’ can be in physical, cognitive, language, and/or behavioral areas. Either two doctors, or a doctor and a psychologist must certify that the disabled person needs a Guardian. The disabled person along with his or her spouse (if any), parent(s) 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
This type of Guardianship addresses individuals who fall outside Article 17A. Article 81 was created in response to the recognition that the needs of persons with incapacities are diverse and complex, and not always so clear-cut. Its purpose was to establish a Guardianship system that could be tailored to the individual needs of the person, while at the same time affording them the greatest amount of independence, self-determination and participation in all the decisions affecting their life.
Unlike under 17A, in order to obtain an Article 81 petition, the applicant must demonstrate clear and convincing evidence that the person is likely to suffer harm because he or she cannot:
- manage her/his property
- provide for her/his personal needs
- understand and appreciate the nature and consequences of not being able to care for her/his own property or personal needs
The role of the Article 81 Guardian is also far more stringent than under Article 17A. Legally, the Guardian is required to:
- complete a six-hour course explaining the duties of the Guardian
- file what is called an initial report (a listing of income and assets of the incapacitated person) within 90 days of appointment
- file an annual report with the court by May 31 of each year
- visit the incapacitated person at least four times a year
- file a closing report upon the termination of the Guardianship
At Antony M. Eminowicz, PLLC Law Office, we are able to assist clients in need of Guardianship with all aspects of the process, both before and after appointment, in order to secure the best possible protection and preservation of the family member’s health and assets.