Adult guardianship is an arrangement whereby a person over the age of 18, who is unable to manage his or her own affairs due to mental incapacity, is appointed a guardian of his or her personal and/or property needs. There are two types of adult guardianship proceedings in New York State, both of which are quite different. The first proceeding, called a Mental Hygiene Law Article 81 guardianship proceeding (“MHL Art. 81”), generally applies to adults who lose mental capacity later in life. The second proceeding, which is available pursuant to Surrogate’s Court Procedure Act Article 17-A (“SCPA Art. 17-A”), is designed primarily (but not exclusively) for parents who are seeking to be appointed guardian of their minor child who is intellectually or developmentally disabled and on the verge of turning 18.
Many parents are surprised to learn that they do not automatically become guardian of their mentally disabled child upon reaching the age of 18.
MHL Art. 81
Often times, an older adult, who has not engaged in prior planning using advance directives, such as a power of attorney, needs assistance managing his or her own affairs due to diminished mental capacity (e.g., the onset of dementia later in life). MHL Art. 81 proceedings, however, do not (in theory) take into consideration a person’s medical diagnosis.
Instead, the “Petitioner”, who is the person, company, or government agency asking the Judge to appoint a guardian, provides evidence of the “alleged incapacitated person’s” “functional limitations”. The Petitioner provides facts to the Judge showing that the alleged incapacitated person is likely to suffer harm because he or she is unable to provide for his or her personal needs and/or property management, and cannot adequately understand and appreciate the nature and consequences of such inability. If a guardian is appointed for the alleged incapacitated person, then the alleged incapacitated person will be deemed an “incapacitated person”.
The Judge in this type of proceeding is cognizant of the alleged incapacitated person’s civil rights. If a guardian is ultimately appointed, the Judge will only provide the guardian with the powers necessary to care for the incapacitated person. That is why it is said that an Order and Judgment in an MHL Art. 81 guardianship proceeding is “custom tailored” to fit the needs of the alleged incapacitated person.
Daniel J. Reiter, Esq. routinely serves as counsel to alleged incapacitated persons and guardian of incapacitated persons. He also represents clients seeking to Petition a Court for the appointment of a guardian for a loved one, friend, or a person already in their care. Mr. Reiter is an expert in this field and teaches a continuing legal education course to attorneys on the topic of MHL Art. 81 adult guardianship proceedings at the National Law Institute. His article on obviating the need for guardianship with powers of attorney is published in the Elder and Special Needs Law Journal.
SCPA Art. 17-A
An SCPA Art. 17-A proceeding differs from an MHL Art. 81 proceeding in many ways. Simply put, if the Court determines that (a) a person is “intellectually disabled” or “developmentally disabled”; (b) guardianship is in their best interest; (c) the disability is permanent in nature; and (d) by reason of the disability the person is unable to manage his or her own affairs, then the Judge is authorized to appoint a guardian of the person and/or property.
The determination of intellectual or developmental disability is based on information provided by medical professionals. Unlike an MHL Art. 81 proceeding, evidence of diagnosis plays a central role in an SCPA Art. 17-A proceeding.
The Judge in this type of proceeding is often less cognizant of the alleged incapacitated person’s civil rights. If a guardian is ultimately appointed, the Judge will often provide the guardian with “plenary” powers, i.e., the entire menu of powers needed to care for the incapacitated person.
If you believe a person in your life may need a guardian, you are encouraged to contact Daniel J. Reiter, Esq. at 646-820-4011 or firstname.lastname@example.org. You are also encouraged to contact Mr. Reiter to discuss powers of attorney, and other “advance directives” that can be used to avoid guardianship.