Proper planning for those that are or may become incapacitated entails putting into place documents which, if the situation arises, authorizes particular individual(s) to act for an infant, incapacitated or disabled individual as their Guardian. However, in certain situations such as a child disabled from birth, or due to emergency, or failure to plan for oncoming disability such as Alzheimer’s, the proper documents cannot be put into place and the Court must appoint a Guardian to act for the person.
A Guardianship is legal proceeding in which a Judge will determine if a Guardian should be appointed over someone who cannot care for their own personal and financial needs. There are two types of Guardianship proceedings. Although both proceedings have the same goal of appointing a Guardian, to properly bring a case we must ascertain the level of need and who is best qualified to be appointed as the Guardian.
Mental Hygiene Law Article 81
Established in 1992 this Guardianship statute authorizes the appointment of a Guardian of an incapacitated person for either personal or financial needs. Before a Guardian will be appointed, the person needing oversight must be found incapacitated – NOT incompetent, meaning that the Court must find that 1) the person is unable to provide for personal needs or unable to manage property AND 2) the person cannot adequately understand and appreciate the nature and consequences of such inability.
A common Article 81 proceeding might involve a child petitioning to become the Guardian over their parent who is having difficulty with daily life activities such as bathing, dressing, meal preparation, feeding, restroom use, walking and memory. It is needed because a parent a) refuses to appoint a representative though one is needed, b) the parent lacks capacity to execute documents appointing a representative, or c) there is in- family fighting over who should be appointed.
While Article 81 seems simple, it requires an in-depth trial to ascertain the incapacity and danger to the person if no guardian is appointed. The Court views such proceedings as a last resort, for when other alternatives are not sufficient. Further, once a Guardian is appointed, the Court will permit the Guardian to act only in limited circumstances, based upon what is necessary for the persons needs, and will require the Guardian to check in with the Court on an ongoing basis to make sure the Guardian is acting properly based upon the persons needs.
Surrogate’s Court Procedure Act 17-A
An Article 17-A proceeding allows the Surrogate to appoint a Guardian over a person who is 18 years or older and who is “developmentally disabled or intellectually disabled”. This includes persons suffering from learning and developmental disabilities such as autism, cerebral palsy, or vision and hearing impairments. Article 17-A is meant to be reasonable and less costly on family members, therefore rather than a trial the Surrogate relies largely on available medical diagnosis which is a lesser burden.
Although a 17-A proceeding is for the developmentally disabled, the Surrogate looks to whether the person has the ability to make his own reasoned medical decisions, not who can make a “better” decision. Since the Surrogate relies on diagnostic evidence and the need for a Guardian is more easily ascertained and as such Article 17-A is much more cost efficient than Article 81, and there are minimal ongoing reporting requirements, and limits on the Guardian in their actions.