A guardian is someone who is appointed to make important decisions for another person who is not able to make those decisions on their own. This may be for a child, an adult with intellectual or developmental disabilities, or an adult who becomes incapacitated. In New York State, different types of guardianship petitions are filed in different courts, and it is important to understand the distinctions between them.

Guardianship for a minor

A minor may need a legal guardian when a parent dies, leaves the country, or becomes too sick to care for the child. This type of Article 17 guardianship can be filed in Surrogate’s Court or Family Court. A guardian for a child can also be named in the parents’ wills. If the parents die and a judge in Surrogate’s Court approves, then the person named in the will can become the child’s legal guardian.

If a child receives more than $10,000, for instance from an inheritance or lawsuit settlement, then a petition for a “guardian of the property” should be filed in Surrogate’s Court. The funds are controlled jointly by the guardian and the court, and no money can be withdrawn without the court’s approval.

Guardianship for an intellectually or developmentally disabled adult

When a person reaches the age of 18, the State of New York assumes they are legally competent to make their own choices. In the case of an adult with intellectual or developmental disabilities who is not able to make decisions on their own, an Article 17-A guardianship petition is appropriate. This type of guardianship is filed in Surrogate’s Court, and can be a guardianship over the person, the property, or both. A certification is required from two doctors or from one doctor and one psychologist. An Article 17-A guardianship is intended to be quite broad and cover most of the decisions that a parent would normally make for a minor child, including choices about finances and medical treatment.

Guardianship for an adult who becomes incapacitated

An adult who was previously able to make their own decisions may become incapacitated as the result of an injury or illness. Seniors may lose the capacity to make decisions because of Alzheimer’s disease or other dementia. In such cases, an Article 81 guardianship may be appropriate. This type of guardianship is filed in Supreme Court in New York. It is very individualized and specific regarding which decisions the guardian has the power to make and which rights remain with the person with a disability. In some states, the term “conservatorship” is used instead of guardianship, sometimes to refer to a person who has power only to make financial decisions for another.

It should be noted that guardianship of an adult who becomes incapacitated is not always the best solution, and it can be avoided in many cases. When a senior begins to need help with some decisions but has not yet lost capacity, a power of attorney for financial decisions or a health care proxy for medical decisions may be the best solution. As part of a comprehensive estate plan, placing some property in a trust for a trustee to manage may be appropriate. Watch our most recent Zoom conference, “The Basics of an Article 81-Guardianship.” Consult with an estate planning attorney or elder law attorney to find the best solution for your situation.

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.

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