Establishing Adult Guardianship in New York

Establishing Adult Guardianship in New York

Individuals who don’t have the mental capacity to make decisions for themselves may need someone to step in and help. By establishing guardianship, known in some states as conservatorship, you can assist a loved one who needs help making financial, healthcare, or other life-management decisions.

Daniel J. Reiter is an experienced adult guardianship attorney who can help you and your family explore your options and decide whether guardianship is right for your situation. Daniel will advise you regarding the guardianship process, prepare the necessary paperwork to file for guardianship, and represent you in court at the hearing on your petition for guardianship.

Legal Guardianship for Adults with Mental Disabilities

In an adult guardianship proceeding, a court appoints a guardian to handle financial, healthcare, or other personal matters on behalf of a person who is not capable of handling these tasks on their own.

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, 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, 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.

Establishing Guardianship for Incapacitated Older Adults

Mental Hygiene Law Article 81 guardianship proceedings are often used to establish guardianship for older adults who do not have advance directives in place, such as a power of attorney or health care proxy, and who have lost mental capacity later in life.

The person seeking to establish guardianship, known as the petitioner, asks the court to appoint them or someone else as guardian in order to make personal, financial, and healthcare decisions on behalf of the “alleged incapacitated person” or AIP. The petitioner must offer evidence that the AIP has “functional limitations”, does not understand the nature and consequences of their functional limitations, and is likely to suffer harm.

If the judge decides that a guardian is in the AIP’s best interest, they will only give the guardian the powers necessary to care for the judicially declared “incapacitated person” or IP. The guardian’s powers are said to be “custom-tailored” to the needs of the IP, meaning the judge will only give the guardian the powers it needs. For example, if the IP can make their own healthcare decisions, but does not understand how to pay bills or manage their finances, the guardian will be given the power to collect money to pay bills and invest funds, but won’t be authorized to make medical decisions on the IP’s behalf.

Establishing Guardianship for a Child Turning Eighteen

Surrogate’s Court Procedure Act Article 17-A (SCPA Art. 17-A) guardianship proceedings are designed primarily for parents who are seeking to be appointed guardian over someone who has an intellectual or developmental disability, such as down syndrome or severe autism, and is about to turn 18 years old.

Many parents are surprised to learn that they are not automatically appointed guardian of their mentally disabled child when they reach the age of majority, and that they need to petition for guardianship with the court to be appointed a legal guardian.

The individual seeking to establish an SCPA Art. 17-A guardianship must present evidence to the court from medical professionals showing that: (a) the person is intellectually or developmentally disabled; (b) guardianship is in their best interest; (c) the disability is permanent; and (d) the person is unable to manage their own affairs because of the disability.

Unlike guardianship for an older adult, in which the judge will tailor the guardian’s powers to the needs of the IP, in an SCPA Art. 17-A guardianship the court will typically grant the guardian all powers available. This is called “plenary” powers, which means the guardian is authorized to act almost without limitation on behalf of the intellectually or developmentally disabled person.

Attorney Daniel J. Reiter: Compassionate Counsel for Loved Ones Seeking Guardianship

New York City guardianship attorney Daniel J. Reiter helps families determine whether guardianship is the best option for their loved one’s needs, and can represent you in establishing guardianship. He helps families navigate the challenge of protecting vulnerable adults, and provides the effective and principled advocacy they deserve.

Daniel represents clients in New York City, Long Island, and Westchester County. If your family is considering guardianship and has questions, contact Daniel today to discuss your matter.

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Frequently Asked Questions

If I petition to have a guardian appointed in a Mental Hygiene Law Article 81 proceeding, will I have to serve as guardian?

No. Even if you are the “petitioner” – the person who is asking the judge to appoint a guardian – you can ask the judge to appoint someone else. If there are no family or friends willing and able to serve, the judge can appoint a non-profit organization or “independent” professional guardian to serve.

My disabled child is about to turn 18. Am I automatically able to make decisions for them when they turn 18?

No (except for limited exceptions). In New York, parents are the natural guardians of their children until age 18. However, once a child reaches 18, even if they are developmentally or intellectually disabled, a parent cannot automatically make decisions for their adult child. Guardianship is often necessary for developmentally and intellectually disabled adults who do not have capacity to manage their own affairs without assistance.

If I am appointed guardian, can I force my ward to take psychiatric medication?

Although most guardians are authorized to make routine and non-routine medical decisions on behalf of their ward, the administration of psychiatric medication to a person who objects requires special authorization from a judge, even if you were already appointed guardian.

How long does it take to get a guardian appointed and authorized to act in a Mental Hygiene Law Article 81 proceeding?

There is no set time. However, from the time counsel is retained, it usually takes about 2-4 months total for the guardian to begin acting. However, if a guardian is needed immediately, the judge can appoint a “temporary guardian” while everything gets sorted out. This speeds up the process.

What is the difference between a guardian and a conservator?

Generally, none. New York used to use the terms conservator (today’s version of guardian of the property) and committee (today’s version of guardian of the person). Many states still use the term conservator, but the concept is the same.

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