Under New York law, there are two major types of guardianships that may be established. They include: MHL Article 81 and Article 17-A of the Surrogate Court Procedure Act (“SCPA Article 17-A”). The guardian under both types of guardianship owes a duty to look out for the welfare and best interests of the ward.
MHL Article 81 Guardianship
Article 81 guardianships are primarily used for elderly persons or trauma victims and sometimes used for a person who is mentally ill or developmentally disabled. The guardian is granted only such powers that the court deems is necessary regarding the person’s personal needs and/or property management needs or both. These needs may include:
- Health care
- Financial affairs
- Management of the person’s property
If your elderly mother has been diagnosed with dementia, then you may want to establish a guardianship to take care of her personal and property needs to ensure her health, safety and comfort.
Surrogate’s Court Procedure Act 17-A (SCPA Article 17-A):
The other type of major guardianship in New York is the Article 17-A of the Surrogate Court Procedure Act (“SCPA Article 17-A”), which is only used for the establishment of a guardianship for a person who is mentally retarded or developmentally disabled. The Surrogate’s Court is responsible for grant this type of guardianship. The Court can appoint the guardian as a guardian of the person, property or both of the ward.
Under the SCPA Article 17-A, a person who is developmentally retarded or mentally disabled is “a person who has been certified by one licensed physician and one licensed psychologist, or by two licensed physicians….” In the case of a developmentally disabled person, the disability may be attributable to “cerebral palsy, epilepsy, neurological impairment, autism or traumatic head injury or any other condition closely related to mental retardation resulting in impairment of general intellectual function or adaptive behavior.”
So if you are parent of a child who is developmentally disabled and about to turn 18, then you may want to establish an Article 17-A guardianship so that you have the legal authority to continue to look out for the health, education and welfare of your adult child.
Who Can Establish a Guardianship?
The executor or administrator of an estate, trustee of a trust, person living with the incapacitated person, parent, or other interested person, including a social service agency, even if the person is not receiving public assistance, may establish a guardianship by petitioning the Court.
Who Can Serve as Guardian?
The following persons or entities can service as a guardian:
- Any person over eighteen years of age, or a parent under eighteen years of age, if
the Court has deemed the person suitable
- Adult child
- Parent or another family member
- Entity such as a corporation or community guardian program
The following persons or entities may not serve as a guardian:
- Any creditor of the incapacitated person
- Employer of a health care provider, residential service, day care or educational
facility providing services to an incapacitated person
- Mental hygiene legal service
Seek Legal Assistance
Article 81 and Article 17-A guardianships are complex. It is recommended that you seek the assistance of an experienced New York estate and guardianship attorney to help you establish the guardianship. The attorney understands the New York guardianship laws and can advise you which type of guardianship would be the most appropriate for your ward. The attorney can prepare the necessary paperwork and represent you at the Court hearing.