In New York State when a minor reaches the age of 18, they have the legal right to make their own decisions. Their parents no longer have the authority to make decisions about their health or property. While this may seem obvious and logical to most, for those parents of disabled young people, a child’s 18th birthday can present a real logistical problem. Fortunately, the law provides a solution to the question of how to care for a child who lacks the capacity to make their own medical and financial decisions after they have become a legal adult – Article 17A guardianships.
Parents may turn to the Surrogate’s Court and ask them to appoint an Article 17A Guardian for their developmentally or intellectually disabled adult child. The Article 17A Guardian will be charged with protecting the interests of the intellectually or developmentally disabled adult and making decisions for them in areas of their life that they are unable to. Generally, the person requesting an Article 17A guardianship is a parent or close family member who will petition their local Surrogate’s Court and asked to be named guardian.
The petitioner will need to decide whether they would like to become guardian of the person – who makes medical and health decisions for the disabled person – or guardian of the property who will make financial decisions. It is also possible that the disabled child requires assistance in both areas in which case the petitioner would seek to become guardian of both the person and property. An Article 17A guardianship can cover all the decisions a parent usually makes for a child such as consenting to medical care or maintaining their financial assets, thereby enabling the parent to provide continuity of care for their disabled child after they have reached the age of legal majority.
When filling for an Article 17A Guardianship, the Petitioner will need to provide information about themselves, about the disabled person, and about the disabled person’s family. They will further need to provide information about the disabled person’s doctor, the disabled person’s assets and income as well as the information for a potential standby guardian who will step in to act if the named guardian ever becomes unable to continue their role. Further, affidavits about the petitioner’s background and those of their household, an affidavit from the disabled person’s physician outlining the disabilities and limitations of the individual, and waivers from certain family members of the disabled individual that sign off on the appointment of the petitioner as guardian. Since this guardianship is based on a developmental or intellectual disability, it is usually permanent and can't be overturned.
While the process may seem daunting, most of the required information is readily available to the average petitioner since they are generally the person who has been caring for the disabled person up to their 18th birthday. While the process is generally straightforward, it can take up to several months from Petition to become named Guardian and therefore it is wise to begin the process soon than later.
If you need assistance in petitioning for an Article 17A Guardianship or any other estate planning or probate law issue, feel free to call the Law Offices of Roman Aminov, P.C. at 347-766-2685.
This article is for educational purposes only - to provide you general information, not to provide specific legal advice from Roman Aminov. Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed local estate attorney in NY or your state.
