In New York State there are three types of guardianship proceedings whereby a guardian can be appointed.
Three Guardianship Proceedings
The three guardianship proceedings, which are established by separate statutes, 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
All three types of guardianship statutes 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 a guardian may be appointed based on different laws, the authority of the guardian granted by the court will be different depending on the type of guardianship proceeding.
All powers granted to a guardian in a guardianship proceeding can be divided into two basic categories:
- Powers to manage the personal needs of the individual; and
- Powers to manage the property of the individual
In general, the court may grant the guardian the power to make medical decisions, determine place of abode, social settings, and to manage property and handle financial affairs such as banking, investments, payment of expenses including household and long-term care costs, and taxes for the incapacitated person.
SCPA Article 17 and SCPA Article 17-A
In the case of a guardian appointed under both SCPA Article 17 and SCPA Article 17-A, the guardian’s authority is plenary, which means that the powers are covering all matters related to the personal needs and property management within the statute. The guardian of the property is subject to the court’s oversight as to the property management and must submit accountings of the property at least annually or as the court demands.
MHL Article 81 Guardianship
In an MHL Article 81 Guardianship, the powers granted to a Guardian of the Personal Needs and/or Property Management are tailored to the specific needs of the Incapacitated Person. In granting the powers to the guardian in this type of guardianship proceeding, the court is guided by a least restrictive means test, and any authorities not so granted to the guardian are retained by the Incapacitated Person. This means that if a power is not specifically listed in the Order and Judgment or in a further Order issued by the court, then the Incapacitated Person retains that power.
For instance, if the Order and Judgment provides the power for a guardian of the personal needs to make decisions with regard to the Incapacitated Person’s health care, but does not specifically grant the authority to determine the Incapacitated Person’s place of abode, the Incapacitated Person can chose where he or she will live.
It is very important to consult with an experienced guardianship attorney to discuss what guardianship proceeding is appropriate in your case and what types of powers will be necessary to achieve the goals you have for your loved one.