Guardianship and Your Child

Many parents of children with disabilities are faced with the question of whether or not to seek legal guardianship. In order to make a good decision, parents need to understand some basic information about guardianship.

What is Guardianship?

In New York State, everyone who turns 18 is automatically assumed to be legally competent to make decisions for themselves. Guardianship is a process by which someone is appointed by a court to make decisions for a person who is unable to make decisions for themselves. In simpler terms, guardianship allows a parent to continue making decisions that they made prior to their child turning 18.

Two Types of Guardianship

There are two types of Guardianship. Article 17A is a broad based guardianship that covers most decisions typically made by parents. This type of guardianship is granted by county Surrogate Courts and can be obtained without the help of a lawyer. Article 81 is individualized and specifies exactly what decisions are made by the person with a disability and what decisions are made by the guardian. This type of guardianship is granted by the county Supreme Court and generally requires a lawyer.

Who needs a Guardian?

Parents/family members should consider guardianship if their child has a disability that makes decision making difficult. For example, a child whose  mental abilities are similar to those of a 5 year old and who has difficulty communicating basic wants and needs would probably be a good candidate for an Article 17A Guardianship. A child with mild mental retardation who communicates clear ideas about where he/she wants to work and live, but has few money skills may be a candidate for Article 81 Guardianship. Parents should be cautioned that guardianship does limit a person with disabilities’ independence and the level of guardianship should match the person’s ability to make decisions on their own.

Why does anyone need a Guardian?

Many life decisions require a person give “informed consent.” For example, prior to performing a root canal, a dentist will seek your consent. For an individual who does not understand the long term effect of not taking care of their teeth, the answer may be a simple “no, because it will hurt.” If this person is over 18, the dentist must follow their decision, unless they have a court appointed guardian.  Similarly, when asked by a “friend” to loan money, some persons with disabilities may not consider the impact on their own finances and give them the rent money.

For persons with disabilities living in group homes or other regulated residences, guardianship may seem unnecessary because the agency already asks for consent from a family member. This occurs because state agencies have regulations that allow the treatment team to make a decision about a consumer’s ability to provide consent. If the team determines the individual is not “capable” of providing consent, a spouse, parent, adult sibling or other family member is contacted for consent.  This gives the family a false sense of being the “guardian” without having gone through formal guardianship proceedings in a court. This leads to problems when consent becomes an issue outside the consumer’s usual network of providers. For example, the person with a disability (over age 18) goes on vacation, slips, falls and breaks their arm. The person yells at the doctor that he doesn’t want a cast because his arm hurts. The parent, who is not the legal guardian, is there telling the doctor that they give permission for the cast. The doctor would need to follow the hospital’s procedures for determining that the son is not able to consent before accepting the parent’s consent. This can be time consuming, while the son continues to be in pain and not receiving treatment.

How do you get Guardianship?

Article 17A Guardianship is handled by the county Surrogate Court. If the person with a disability is under 18, the county where the guardian lives is used. If the person with a disability is over 18, their home county is used. Anyone can call the county Surrogate Court and request an “Article 17A Guardianship Packet.” This will include all the necessary forms and directions on how to complete them. These forms are also available on the web at http://www.courts.state.ny.us/forms/surrogates/guardianship.shtml. The packet will include two forms that need to be completed by a physician and a psychologist or two physicians. The doctors will need to certify that the person with a disability is in need of guardianship. The guardian will also need to provide information about where they have lived in the past. This information is used to conduct a search of the state central registry for a past history of abuse. Most of the forms will need to be notarized, which can be accomplished at most banks. The guardian will also need to “serve” (give) papers indicating that they are seeking guardianship to the person with a disability, their spouse, other parents (if not seeking joint guardianship) and adult siblings. In the case of an individual living in an OMRDD residence, the executive director of the agency will also need to be served and Mental Hygiene Legal Services (MHLS) is notified. MHLS staff will  meet with the individual to ensure that their rights are protected. There is a small filing fee (usually less than $50), and the court hearing can be conducted without a lawyer. Anyone having difficulty completing these forms or understanding the process can contact RCAL for assistance.

Article 81 Guardianship usually requires the assistance of a lawyer and is more costly. This type of guardianship is handled by the county Supreme Court. When selecting a lawyer, it is important to ask if they have guardianship experience for people with disabilities. It is also important to make sure that they understand the capabilities of the person with disabilities.

What is a Standby Guardian?

At the time guardianship is set up, a standby guardian can also be selected. A standby guardian is able to automatically take over guardianship duties if the guardian dies or becomes incapacitated. The standby guardian can make decisions immediately, but must go to the court within 60 days to request permanent guardianship status.

When should you seek Guardianship?

Ideally, guardianship should be set up prior to age 18. Article 17A Guardianship typically takes about three months to complete. Article 81 can take longer based upon the complexity of the guardianship. Therefore, it is recommended that families start the guardianship process six months prior to the 18th birthday.

RCAL staff can help identify which type of guardianship, if any, is most appropriate.  RCAL can give referrals for local lawyers familiar with the guardianship process. RCAL staff can assist understanding and completing Article 17A Guardianship packets. Although this process can be confusing, it is necessary for many people and help is just a phone call away.

If you would like more information regarding guardianship for your child with a disability, please contact Suzanne de Beaumont.