If an individual has lost capacity, or if an individual has been disabled from birth and is incompetent, it may be necessary to commence a court procedure to appoint a person to carry out the individual's wishes. The appointed individual is called the "guardian." The guardian will often have to make personal, financial and health care decisions for the individual. There are several types of guardianship proceedings including:
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Article 17 is the proceedings used for individuals where a court appoints a guardian. This might apply to a minor whose parents are deceased.
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Article 17A applies to individuals who lack capacity from birth such as autism or Down's syndrome.
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Article 81 covers those individuals who have become incompetent because of brain injury, stroke, dementia or Alzheimer's and need a guardian.
The estate planning and elder care planning attorneys at Lacy Katzen LLP will be happy to explain the intricacies of the various guardianship proceedings to interested clients.
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Primary guardianship attorneys
Lisa Arrington
Terrance Emmens
Article 17 Guardianship Proceeding
Article 17 of the Surrogate's Court Procedure Act governs the appointment, duties and authority of a guardian of an infant child, defined as a child under the age of 18. A guardian may be appointed of the person and property, of the person only, or of the property only of an infant. The proceeding is brought in the Surrogate's Court of the County where the infant resides or where the infant owns property. If an infant is to receive monies over the amount of $10,000.00 pursuant to the terms of a Will, by the laws of intestacy, or by a wrongful death proceeding, a petition for guardianship is required by the Court.
Article 17A Guardianship
Article 17A of the Surrogate's Court Procedure Act gives the Surrogate's Court jurisdiction to appoint guardians over developmentally disabled individuals and mentally retarded individuals incapable of self management. Article 17A guardianship is available for individuals whose disability began before that individual became 22 years of age, with the exception of those with traumatic brain injury for whom there is no age limitation. Article 17A guardianships are often appropriate for individuals with cerebral palsy, autism, epilepsy, mental retardation, traumatic head injury and others with neurological impairments incapable of self management.
A petition for the appointment of a guardian under Article 17A can be made by a parent or any other interested adult (including the disabled individual seeking a guardian for himself or herself). In most cases, the parents are seeking to be appointed guardians for their disabled child, and often this proceeding is commenced prior to the disabled child turning age 18. Once a guardian is appointed under Article 17A, such appointment is for the life of the mentally retarded or developmentally disabled individual. Therefore, standby or alternate guardians are often named in the original petition.
The court requires medical documentation from a doctor and psychologist regarding the nature of the child's or person's disability. The court may or may not require a hearing. Typically, the court will dispense with a hearing if the petition for guardianship is made by the parents or is consented to by the parents. The court may also appoint a guardian ad litem to review the petition and make a recommendation to the court as to whether the appointment of a guardian would be in the best interests of the mentally retarded or developmentally disabled individual.
Unlike an Article 81 guardianship where the court determines the specific areas and powers the guardian will assume an Article 17A Guardian has complete authority to act on behalf of the disabled person, including the authority to make health care decisions.
Article 81 Guardianship Proceeding
An Article 81 of the Mental Hygiene Law governs the proceeding to determine if an adult person is unable to manage his or her "person" and/or "property" and that the appointment of a guardian is necessary to meet those needs. The court must find that the alleged incapacitated person does not understand or appreciate the nature of their disability. A guardianship proceeding is the closest proceeding in the civil law to a criminal proceeding in that a person's rights are being taken away. It is a burdensome and expensive process.
The court will only appoint a guardian where the alleged incapacitated person ("AIP") became incapacitated after he or she reached the age of 22 (with the exception of those AIP's who suffered a traumatic brain injury for whom the less burdensome Article 17A guardianship proceeding would be more appropriate). An Article 81 proceeding, even if uncontested, is expensive, time consuming and should be avoided unless all other less invasive forms of intervention have been exhausted.
We cannot understate the importance of selecting a trusted spouse, child or friend to be your power of attorney, so as to avoid the extraordinary burdens imposed these people, should you become incapacitated. Where there is no power of attorney, or if the power of attorney is financially exploiting the principal through action or inaction, a guardianship proceeding should be initiated.
The object of a guardianship proceeding is to satisfy the court that a person is incapacitated within the meaning of the law. Once proved, the court grants the guardian only those powers that are necessary to meet the incapacitated person's needs. The role of the court is to make certain that the powers granted to the guardian maximize the incapacitated person's autonomy and independence and that the powers granted are limited, or "the least invasive" as are necessary to accomplish that goal. The petitioner in the guardianship proceeding, typically the person seeking to be appointed guardian, has the burden of proving to the court that the powers sought are the minimum necessary to meet the incapacitated person's needs and that he or she will, in all things, maximize the incapacitated person's autonomy and independence.
Once a judgment and order have been entered appointing a guardian with specific enumerated powers, the guardian will have to complete an initial report and a variety of other court required documents pledging loyalty to the IP, as well as report and summarize to the court on an annual basis what the guardian has done to discharge his/her duties, including the filing of detailed financial accountings and summaries of how the guardian has met the incapacitated person's personal needs.
As is the case from time to time, guardianship proceedings may be necessary to provide for the needs of an incapacitated person or to protect an aging client from over reaching children and the attorneys at Lacy Katzen, LLP are well versed in commencing and defending against a petition for guardianship.