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Guardianship: Article 17A

When should I seek Guardianship?

Generally, an appropriate time to file the petition would be when the individual is around 17 ½ years old so the guardianship can be in place when the individual turns 18. However, the petition can be filed any time after the individual turns 18 years old.

Who qualifies for an Article 17-A Guardianship?

An adult with a developmental disability, and an adult with a traumatic brain injury (TBI).

How are developmental disabilities classified?

Developmental disabilities must begin before the person is twenty-two years of age.  Disabilities can include: cerebral palsy, epilepsy, autism, dyslexia, neurological impairment, intellectual Disability.

What documentation do I need to prove a lack of capacity?

Since medical evidence of the disability is required the court will require two certifications by physicians as to the underlying condition and its manifestation; or one certification of a physician and one affidavit of a licensed psychologist as to the underlying condition and its manifestations.

What is a traumatic brain injury?

Traumatic Brain Injury (TBI) is damage to the brain caused by an injury. TBI typically results from a violent blow to the head that causes the brain to collide with the inside of the skull.

Is there an age limit for TBI?

No, there is no age limit for TBI.  The TBI may occur after the age of 22 and a person may still seek guardianship under Article 17A.

Who may seek the appointment of a guardian?

Either a parent, any interested person who is over eighteen years of age, or a corporation having corporate power to act as a guardian of people with developmental disabilities may seek the appointment of a guardian in a 17-A proceeding.  A non-profit corporation that is organized and existing under the laws of New York State may only seek guardianship when no family member is involved.

When and why can a corporation seek guardianship?

A non-profit corporation can seek guardianship if the disabled person is living in a residential facility and does not have a guardian.  A corporation can also seek guardianship if they need to make health care decisions or handle some finances for the person with the disability.

What decisions can be made on behalf of the person with a disability?

The Guardian handles limited financial and property matters related to the person under a disability. Also, the court could authorize the guardian to make decisions to withhold or withdraw life-sustaining treatments such as artificial nutrition and hydration.

How long does a guardianship last?

A guardianship will last either for the lifetime of the person under guardianship or until the guardianship is discharged through Court action. If the needs of the person under guardianship change, an application can be made to modify or even dissolve the guardianship order.

Does a change in legal status end the guardianship?

No, even if the person with the disability reaches the age of majority or marries the guardianship does not end.  Only a court decision can end a guardianship of a person with a disability.

Is the guardianship valid in another state?

No, the 17A Guardianship is only valid in New York State. This means that if the individual under the guardianship moves to a new state, the guardian will not have the authority to make decisions for his/her ward. The guardian would then need to initiate another guardianship proceeding in the new state. However, depending on the laws of the new state, it may be possible to transfer guardianship from New York without the need for another guardianship proceeding.

Guardianship: Article 81

When does the guardianship proceeding begin?

A Guardianship proceeding is commenced by the completion and submission of an Order to Show Cause and a Petition to the Court.  These documents set forth the details of why a Guardianship is needed for the Alleged Incapacitated Person.

What are the proceedings of the hearing?

At the hearing, the Petitioner testifies as to the need for the guardianship, who they desire to be appointed as Guardian and the powers requested.  The court Evaluator testifies as to his/her findings and recommendations.  Other witnesses may also be called.  The Court typically states its conclusions at the end of the hearing in a Bench Decision.

What happens after the Judge determines the person is in need of a guardian?

Once the Judge determines that the AIP is in fact incapacitated or is a person in need of a Guardian, a proposed Order and Judgment is prepared by the Petitioner’s attorney and filed with the Court for judicial approval.  The Order and Judgment sets forth the name of the Guardian(s), the powers granted to the Guardian, and the compensation due to the Court Evaluator for his/her services which will be paid from the Incapacitated Person’s (“IP”) assets or as otherwise directed by the Court.  A signed Order and Judgment is necessary for the appointment of the Guardian.

 

The Guardian may be required to post and file a Bond with the Court.  The Guardian will also have to sign and file certain documents for his or her appointment, including a Consent to Act, Oath and Designation, and other Court forms.  Once all documents have been filed, the County Clerk will issue a Certified Commission to Guardian, which is the document enabling the Guardian to act.

Is there any kind of training that I will have complete should I gain guardianship?

The Court will require the Guardian to take a class, offered through the Office of Court Administration, to teach the Guardian about his/her duties and responsibilities.

Are there any reportings that the Guardian will have to make?

The Guardian will have to file an Initial Report within ninety (90) days of being Commissioned, to report on the initial assets of the Guardianship and as to the IP’s well-being.  The Court appoints a Court Examiner who will review the required Guardianship accountings.

Further, the Guardian will need to file an Annual Report in the month of May, setting forth his or her acts as Guardian for the preceding year ending December 31st.  The report accounts for the Guardianship assets and the IP’s well-being.

Can I be compensated for being a Guardian?

The Guardian can seek compensation for services rendered as Guardian.  Compensation is requested when filing the Annual Report.  The Court Examiner will review the request for compensation and the Court will make an Order as to same.  If the guardianship assets are low, the Court can reduce the standard compensation or deny the request.  The Guardian can waive compensation.

Can Medicaid planning and asset protection planning be done for the incapacitated person?

A Petition can request authority to do Medicaid planning and asset protection.  The Petition must clearly establish the validity of the plan and that at no time will the Alleged Incapacitated Person be left without assets or Medicaid to meet the medical needs.  The Courts can authorize a Guardian to implement Asset Protection Planning, Estate Tax Planning and Medicaid Planning for an incapacitated person. The Court will base its decision on whether the plan is in the best interest of the incapacitated person and whether a reasonable person would also implement such a plan.

How would the incapacitated person sell or buy Real Property?

A Guardian must apply to the Court for the authority to sell or buy real property for the incapacitated person.  The Court will review the terms of the Contract of Sale/Purchase, the Contract price and the need for the transaction.  The Court appoints an independent Certified Appraiser to certify the fair market value of the property and to determine if the Contract price is reasonable.  The Court can seek modification of a Contract or reject it.

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