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.

For a glossary of common terminology, click here.