When seeking to obtain guardianship over an individual incapable of making their own decisions, it is necessary to determine whether a guardianship under Article 81 of New York’s Mental Hygiene Law or a guardianship under Article 17-A of New York’s Surrogate’s Court Procedure Act is more appropriate. An Article 81 guardianship is typically sought when individual has become incapacitated due to dementia or Alzheimer’s Disease typically, while an Article 17-A guardianship is used when an individual is intellectually or developmentally disabled and in need of a decision maker. Article 17-A guardianships are most often used when a developmentally disabled person has reached age 18 and their parent or guardian (for minors) must now apply for the legal authority to make decisions on their behalf. Article 17-A guardianships must be brought in Surrogate’s Court while Article 81 guardianships are brought in Supreme Court.
Article 81 intends to be the “least restrictive form of intervention” meaning that the powers granted to the guardian by the Court should only be those that are necessary to provide for the needs and/or property management of the incapacitated person (the “IP”) but that at the same time allows that individual to exercise the independence and self-determination of which they are capable. It is also possible that a guardian may be appointed to manage either the incapacitated person’s personal needs or their financial affairs or both. A proposed Article 81 guardian of the person (also known as a personal needs guardian) may be granted powers and make decisions regarding activities of daily living, such as:
· Determine who will provide care to the IP;
· Decisions regarding the IP’s education;
· Decisions about the IP’s travel;
· Decisions regarding the IP’s social environment;
· Decisions about the IP’s living arrangements;
· Ability to consent to major medical or dental treatment or to refuse life sustaining treatment.
A proposed Article 81 guardian of the property (also known as a property management guardian) may be granted powers such as:
· To transact any banking business;
· To make gifts;
· To engage in any litigation or settlement on behalf of the IP;
· To marshal income and assets;
· To execute and file tax returns;
· To enter into contracts;
· To create revocable or irrevocable or supplemental needs trusts.
Article 17-A guardians are broadly authorized to make all healthcare and financial decisions for the incapacitated person.
Due to the nature of Article 81 Guardianships and the goal of appointing a guardian in the manner that is least restrictive to the IP’s autonomy, the process is more complex in nature than that in an Article 17-A guardianship. Under Article 17-A a petition must be brought with an affidavit from the proposed guardian, the disabled person’s birth certificate and a certification from two doctors that that IP cannot take care of themselves due to their developmental or intellectual disability or due to a traumatic brain injury rendering them disabled. The petition will be fairly detailed and include information about the IP, their family, the petitioner and details about the IP’s property. After the petition is filed, notice of the proceeding must be provided to all interested parties. There will then be a short hearing during which the IP and the proposed guardian will appear, and the judge will make a determination about whether the proposed guardian is suitable. Article 81 guardianships are also commenced by a more complex petition than those filed pursuant to Article 17-A. A full accounting of the allegedly IP’s illness, their needs and their abilities and limitations regarding their power to care for themselves and to make decisions regarding their property as well as details regarding the allegedly incapacitated person’s property must be included in the petition. After the petition is filed, notice of a hearing will be provided to the interested parties and a Court Evaluator will be appointed to investigate the circumstances of the allegedly incapacitated person (“AIP”) and report back to the Court. The Court Evaluator will examine the AIP’s medical and financial records and speak to all those involved in his or her life and make a recommendation to the Court about whether a guardian is necessary, who that guardian should be, and what powers they should be granted. At the hearing, the Judge will speak to the allegedly incapacitated person to assess their capacity and then the parties may call witnesses who are familiar with the individuals needs and condition to testify including medical professionals, doctors, friends and relatives – anyone who can provide a picture of the AIP’s need for a guardian. The Court Examiner may also testify after which the Court will determine whether a guardian will be appointed, what type and who should serve in such position. After the hearing, the petition will prepare a proposed Order and Judgment which will outline the powers of the guardian, the Court may then revise or approve the scope of the guardian’s powers and sign it.
Typically, a guardian will be required to complete a training course and then prepare their own commission. The commission is the document they will use to present themselves as guardian to those they are interacting with on the IP’s behalf. It is the document that provides the guardian with their authority to act. In an Article 81 guardianship, an initial report of guardian must be filed with the Court 90 days after the Commission is signed. This will tell the Court that the guardian completed their required training, obtained any required bond, information about the IP’s financial resources as well as detailing any visits the guardian made to the IP and any information about the medical and personal care. After the initial report, the guardian is required to report to the Court annually about their actions. They will include details about any financial steps taken on the IP’s behalf as well as provide an update about their visits to the IP. The Court will then approve the annual accounting or ask for additional information. Article 17-A guardianships are much simpler and do not require annual reporting by the guardian to the Court. However, in either case, the guardian is acting in a fiduciary capacity and is required to act in the best interests of the IP. At the death of the IP, the guardian will provide notice to the court, provide a final accounting of their actions as guardian and seek to be discharged as guardian.
Please call the Law Offices of Roman Aminov, P.C. at 347-766-2685 to discuss the type of guardianship that is right for your loved one. Our experienced and compassionate Queens, NY based estate attorneys will guide you through the process from start to finish.
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