Ideally, Pierro, Connor & Strauss, LLC advises all competent adults to sign advanced directives such as a Durable Power of Attorney or Health Care Proxy which permit the appointment of an agent to make business and/or health care decisions if our client is unable to make decisions or take action for himself or herself. But, what if you lose capacity due to dementia, mental illness or an accident before you sign a Power of Attorney or Health Care Proxy? Or what if a family member has a developmental disability and never had capacity to sign documents in the first place? In these cases, we recommend that you consider a legal guardianship proceeding to appoint a trusted family member or friend to become the legal decision maker. As guardianship lawyers, we have experience helping clients living in Albany, New York City, and many other communities across the state with these matters. If you reach out to us, we’ll be more than happy to start going to work for you.
Does a guardian make either financial or health care decisions or both?
A court may appoint either a guardian of the property (makes financial decisions and assumes control of AIP’s finances), a guardian of the person (makes health care and end of life decisions) or both. They may be the same person or different people.
How do I start a guardianship proceeding?
First you have to determine what type of guardianship you need. In New York there are two different types of guardianships: One in surrogate’s court in New York under Article 17-A of the Surrogate’s Court Procedures Act and one in the supreme court under Article 81 of the Mental Hygiene Law.
Article 17-A: This is a proceeding in Surrogate’s court and is only for individuals with developmental disabilities or traumatic brain injury.
Article 81: This is a proceeding in a Supreme court and can be used for individuals of any age
How do you choose a guardian?
Ordinarily, families will look to trusted family members, friends or other professionals in their lives. In general, there are not public guardians in New York, but local Departments of Social Services are occasionally appointed as guardians when there are not any family available.
NYSARC may also act as guardian for individuals with developmental disabilities who are involved in with the county chapters
What is a guardianship?
A guardianship is a legal proceeding held in a court in which a judge determines an individual is in need of assistance with decision-making and appoints a guardian.
What is the difference between an Article 17-A and an Article 81 guardianship?
They differ based upon the types of disabilities involved with each, the formality and complexity of the proceeding, the types of powers a guardian could receive and the cost.
Article 17-A: This proceeding is only for individuals with developmental disabilities or traumatic brain injuries who are over the age of 18. The pleadings are more straightforward and there are less professionals involved. But, the law is a black and white plenary guardianship. This means the guardian has very broad powers which cannot be tailored to the individual needs of the person in need of the guardianship. Because the pleadings are more straightforward and, in general, it is a more informal proceeding, the fees for an Article 17-A guardianship are far less than an Article 81 guardianship.
Article 81: This proceeding can be used for individuals of any age and with any type of disability, including mental illness or dementia. The pleadings are more complex because the attorney must prove that the alleged incapacitated person (AIP) has functional limitations, does not understand and appreciate the functional limitations and who they may be in physical or financial jeopardy of harm due to these limitations. Further, the guardian’s authority is tailored to the specific needs of the AIP and there are many more professionals involved in an Article 81 guardianship. Therefore, this is a costly proceeding.
If you have a family member or friend who is in need of someone to assist with legal decision making related to his/her finances or health care decisions, please schedule a consultation with one of our elder law attorneys. We can review your situation to determine if a guardianship is the right legal solution for you.