** This article has been revised from its original version which was published on January…
When Does Guardianship Become a Necessity?
In New York State there are three different types of guardianships:
- Guardianship under Mental Hygiene Law Article 81: Applicable to an adult who had capacity during their lifetime but has since experienced cognitive and/or functional limitations.
- Surrogate’s Court Procedure Act Article 17 Guardianship: Guardianship of a minor, applies to anybody under the age of 18 without a legal guardian. An Article 17 action assigns guardianship for a child only until they reach the age of majority at 18 years old.
- Surrogate’s Court Procedure Act Article 17A Guardianship: Applies to an adult without requisite mental capacity; adults with developmental disabilities, who are intellectually disabled, or who have a traumatic brain injury.
Many times parents of an adult who does not have the requisite capacity to make decisions for themselves, will file for Article 17A guardianship once the disabled child reaches 18 and no longer qualifies as a minor.
The 17A procedure is typically less costly and more streamlined than the Article 81 proceeding, which can involve multiple hearings and cost thousands of dollars. In many instances there may not be a need for an Article 81 Guardianship where the individual has advanced directives in place prior to losing their cognitive and/or functional capacity. However, an individual who has developmental disabilities and/or is intellectually disabled, cannot execute advanced directives since they never had the requisite capacity.
Advanced directives are planning documents that consists of a durable general power of attorney, a health care proxy, and a living will. Advanced directives set out a clear understanding of who has the authority to make financial and health care decisions and what end of life care decisions the individual would choose. The person giving the authority is called the principal, and the person who is given the authority is the agent.
The durable general power of attorney gives an agent the authority to handle the person’s financial affairs. The health care proxy enables an agent to make healthcare decisions for them. The living will is clear and convincing evidence of the principal’s end-of-life decision wishes.
In many cases a guardianship may be necessary for an adult without mental capacity, and who does not have advanced directives. In some cases, even if an individual has advanced directives a guardianship may be necessary since the advanced directives do not authorize the relocation of the principal against his/her wishes.
Similarly, in cases where the person had the capacity but did not execute these documents before becoming incapacitated, someone needs to be able to make medical, financial and often legal decisions on their behalf. Someone needs to be able to pick up their mail, pay their taxes, pay their bills, access their bank accounts, and make a medical decision for them in the hospital or doctor’s office.
Once the legal right of a guardian to act is established, it can be used for their medical and estate planning; to ensure that their finances are being treated responsibly, that their basic needs are being met, and that they are getting the care they require. When it is beyond a person’s capabilities to take charge of their own care and treatment, that’s when establishing guardianship may be necessary.
Contact us today at 800-680-1700 with questions or comments.
Eric J. Einhart
Russo Law Group, P.C.
100 Quentin Roosevelt Blvd., Suite 102
Garden City, NY 11530
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