When considering how to manage the property and/or well-being of a person under a disability, the need to be appointed a guardian for that person often becomes part of the conversation.
In New York State there are three types of guardianship proceedings whereby a guardian can be appointed. The three guardianship proceedings are as follows:
- Surrogate’s Court Procedure Act (SCPA) Article 17 – Guardianship of a Minor Child
- SCPA Article 17-A – Guardianship of an Adult with Developmental and/or Intellectual Disabilities
- Mental Hygiene Law Article 81 – Guardianship of an Incapacitated Adult
Although each type of guardianship proceeding is authorized by its own law, all three allow for the appointment of a guardian of the person only, a guardian of the property only, or the guardian of the person and property.
Since they are all authorized and guided by separate laws, the process by which a guardian is appointed in each of the types of guardianships will be different.
This blog post will focus on how to become a guardian of an Adult with Developmental and/or Intellectual Disabilities in a SCPA Article 17-A guardianship proceeding.
In New York State, when a person becomes 18 years-old that person is considered legally competent to make decisions for themselves. Although this may seem counterintuitive to many parents and/or family members of a child with special needs, the practical impact of their loved one turning 18-years old means that no other person can legally make a personal, medical, and/or financial decision for that individual until a Judge appoints a guardian or co-guardians for their child or loved one.
If your loved one is “intellectually disabled or developmentally disabled,” has difficulty making decisions for themselves, and is over 18 years old, then he/she will likely need a guardian to be appointed to make decisions regarding his/her personal needs and/or property management. If a guardian is needed, then you can submit an Article 17-A petition in the Surrogate’s Court where your child or loved one resides. The child or loved one who is the subject of the Article 17-A Guardianship proceeding is referred to as the “Respondent” in the guardianship proceeding.
In addition to the petition, a certification from one physician and one psychologist or two physicians must be filed with the court to certify that the Respondent has a disability and is not able to manage his or her affairs because of intellectual disability, developmental disability, or a traumatic head injury. Once the petition and certifications are approved by the court, a citation will be issued that will provide notice to the Respondent and any other interested party who has not signed a waiver and consent as to the citation return date.
Interested parties usually include close family members and adult members of the household. The Respondent and interested parties will be listed on the citation will need to be served with the citation and will have an opportunity to appear at the citation return date.
GAL or MHLS
In addition to issuing the citation, the court may in its discretion appoint a guardian ad litem (commonly called a “GAL”), or the Mental Hygiene Legal Service (MHLS) if the Respondent is a resident of a mental hygiene facility. The reason the court appointments a GAL or the MHLS is to help the Respondent in the guardianship proceeding and to make a recommendation to the court whether the appointment of a guardian as proposed in the application is in the best interest of the Respondent.
The Respondent and interested parties will be listed on the citation will need to be served with the citation and will have an opportunity to appear at the citation return date.
In most courts, the citation return date is also the hearing date for the proceeding. At the hearing, the person(s) bringing the guardianship proceeding, who is called the Petitioner(s), must be present to testify as to the need for the guardianship. The court will usually require the Respondent to be present unless good cause can be shown why he/she should not be present at the hearing. At the conclusion of the testimony, the court will usually render a decision on the record and if the petition is successful, the court will issue a decree and letters of guardianship soon after the hearing date.
An Article 17-A Guardianship is very broad and covers most decisions that are usually made by a parent for a child such as financial and healthcare decisions.
It is important to meet with an attorney who is experienced in guardianships and can help you determine what type of guardianship proceeding is the most appropriate for your child or loved one with special needs before your child or loved one turns 18 years old.