By Michelle Singh, LMSW & Family & Community Services Coordinator
Guardianship…What is this?
Guardianship is the process of appointing someone to make important life decisions, such as those related to personal, medical and financial issues, for someone who does not have the ability to make those very decisions.
After the age of 18, all individuals become their own guardian. This means that they can make decisions based on the areas described above, personal, medical and financial. What happens if a parent or guardian has been making those decisions, or assisting with those decisions, prior to the age of 18 and there is reasonable belief that the individual with a disability is not able to make solid choices?
New York’s Surrogate Court allows a parent or guardian to apply for 17-A Guardianship. In order for 17-A Guardianship to be considered, the individual with the intellectual or developmental disability must have become disabled prior to the age of 22; an individual with a traumatic brain injury sustained at any age is eligible for this process.
It is recommended that 17-A Guardianship be sought 6 months prior to an individual’s 18th birthday, in order for services and decisions to continue seamlessly.
How does a family member or other guardian apply for Article 17-A Guardianship?
The first step is to prepare the written request to the court, also known as the “Petition” and provide the required documents. The application process can be completed online, but if you are interested in a paper copy of the packet you can contact the county’s Surrogate’s Court and request an “Article 17-A Guardianship packet.”
Next, the family or person requesting 17-A Guardianship must provide proof of the disability: either a physician’s affirmation and a licensed psychologist’s affidavit or two physicians' affirmations.
Once the above steps are completed, all of the documentation will be submitted and filed with the Surrogates Court and a fee of $20 is paid. A hearing will be scheduled which will include at the very least, the individual with the disability, as well as other people related to the individual’s unique situation. Most often, a Guardian Ad Litem is appointed by the court to advocate and represent the individual with a disability. The GAL, often an attorney, submits a report to the court based on his/her review of the file and interview with the person with the disability and proposed guardian.
At the hearing, upon reviewing all of the submitted paperwork and documentation from the physician(s)/psychologist and GAL, the court will make a decision, or decree. The court will either deny or confirm the appointment of Guardians of the Person, of the Property, or most often, both. The court will provide “Letters of Guardianship” which confirms the appointment of the guardian.
Generally, families or interested persons are able to complete Article 17-A Guardianship without the use of an attorney, unless there are complicated financial factors.
The above is a summary from a publication produced by Wilcenski & Pleat, PLLC, Attorneys at Law
Special Needs Estate Planner Newsletter
August 2017 edition