Understanding Guardianship in New York State: A Simplified Guide

If you're caring for an aging parent, a loved one with disabilities, or a child facing an unexpected life event, you may need to consider petitioning the court for guardianship. In New York, there are three guardianship types: Article 81, which applies to adults over the age of 18; Article 17A, designed for individuals living with developmental or intellectual disabilities prior to the age of 21; and Article 17, which is meant for minors' who are entitled to certain assets prior to the age of 18. Understanding which option applies will help you make the right decision and protect those you love.

Article 81 Guardianship: Helping Incapacitated Adults

Article 81 guardianship is used when an adult can no longer manage their personal or financial affairs due to illness, injury, or cognitive decline, especially when there is no power of attorney or health care proxy in place. This form of guardianship is flexible and tailored to the individual's specific needs. It is especially helpful in situations involving older adults with dementia or adults of any age experiencing mental health challenges.

This guardianship process begins when someone files a petition with the Supreme Court. The Petition is filed in the county of residence of the person in need of a guardian. The court schedules a hearing to determine whether guardianship is necessary and to decide who should serve as guardian. The person needing assistance, called the alleged incapacitated person (AIP), has the right to attend the hearing, and the court may appoint an attorney to represent their interests. Family members and other interested parties can also participate in the hearing to share information or recommendations. Most notably, the Petitioner has the burden to prove that the AIP is not able to manage their own affairs independently and that this is detrimental to the individual.

If the court finds that a guardian is needed, it will also grant the guardian specific responsibilities and authorities. The guardian may be authorized to make decisions regarding health care, living arrangements, social activities, and/or financial matters. In some cases, one guardian manages all aspects of the individual's life, while in others, co-guardians may share the responsibilities.

Once a guardian is appointed, they are then required to attend an educational course and are responsible for filing annual reports with the Court. In other words, there is continued oversight of the actions of the guardian(s). Article 81 guardianship remains in effect as long as needed, but can end if the individual regains capacity. At the time of the AIP’s passing, the guardian is required to file a final report with the Court and the guardian is ultimately discharged by an order of the Court.

Article 17A Guardianship: Supporting People with Developmental Disabilities

Article 17A guardianships, typically handled in the Surrogate's Court in New York State, are intended for children or adults living with intellectual or developmental disabilities that began before an individual reaches the age of twenty-one (21). This type of guardianship provides ongoing support for individuals who need assistance with daily decisions, care, and sometimes financial matters throughout adulthood.

To obtain Article 17A guardianship in New York State, families must file a petition in Surrogate's Court. The petition should include affidavits from two doctors or psychologists who have treated the individual, confirming the disability and the need for guardianship. Additionally, parents and/or proposed guardians must provide supporting Affidavits. The Court may appoint a guardian ad litem to represent the young person’s best interests throughout the proceeding.

Unlike Article 81, which tailors the guardian's powers to the individual's needs, Article 17A generally grants the guardian broad authority to handle most decisions. Financial reporting requirements for Article 17A guardians are usually simpler than for Article 81, especially since many individuals who need this type of guardian typically have few or no assets. For higher-functioning adults, Article 81 may be a better fit, as it allows the judge to tailor orders and preserve greater independence for that individual.

Speaking with an attorney can help determine whether an Article 17A or Article 81 is the right guardianship for your loved one.

Article 17 Guardianship: Managing Assets for Minors

Article 17 guardianship is used when a child inherits money or property from a parent, relative, or insurance payout, and there is no trust or legal arrangement in place to manage the inheritance until they reach the age of eighteen (18). In such cases in New York State, the Surrogate's Court will review a Petition for the guardian and appoint a guardian of the property to manage the minor's assets until the child turns eighteen (18).

Once appointed, the guardian must keep the child's assets in a separate account created specifically for the minor. If expenses arise for education, healthcare, or other necessities, the guardian must obtain court permission before making withdrawals. The court maintains strict oversight of the account to ensure all spending is in the child's best interest and that the minor’s assets remain secure until adulthood.

It is important to note that Article 17 guardianship concerns only the management of a minor's financial assets, not custody or living arrangements. Any questions about who will raise the child are handled separately in family court under other legal provisions. This separation ensures that a minor's inheritance is protected, while decisions about their upbringing stay in the appropriate legal forum.

Planning Ahead

Planning can minimize complications and safeguard your loved ones. We recommend that every adult have a power of attorney and a health care proxy. Families with children should consider naming a guardian in their will and creating a trust, or including trust language in their Last Will and Testament to manage assets for minors. For children with disabilities, it's crucial to get legal help to ensure long-term support and protection.

Guardianship is a significant responsibility, and the process is complex. If you are unsure which option is best or need help navigating the process, it's wise to consult an experienced estate planning attorney. It is always important to remember that guardianship is an emotional and very personal process and not one-size fits all. Our team of legal professionals is ready to guide you in choosing the right type of guardianship for your individual needs and support you through every step.