New York Guardianship Cases Illustrate Effect of New Article in Law

Several years ago, New York state implemented the new Article 81 in their guardianship statute which singles out particular areas of guardianship rather than providing the full decision making powers of Article 17A guardianship status. While this may seem like picky legal details to the average person, in reality it can make quite a difference in the life of a disabled adult needing a guardian. It also makes a very real difference in the process or obtaining guardianship and in court cases involving these matters.

Two Examples of New York Guardianship Cases

In a 2010 case, an autistic man who was also an artist was requested by his parents to become to them a 17A ward (subject of guardianship). They desired legal right to sell his works of art and to donate some of the proceeds to charities. The judge, however, explained that instead they would need to file for an Article 81 type of guardianship, which the parents proceeded to do.

Another case involving a court requirement that Article 81 rather than 17A status be sought occurred in 2009 when the 17A application was denied based on the parents' son exhibiting only mild retardation rather than total incapacity to make his own decisions.

Situations Where Guardian Status is Often Sought

While parents are automatic legal guardians for their children under 18 unless they somehow forfeit that right through abusive behaviors, adulthood eliminates this legal power of parents and leaves their son or daughter responsible for his or her own decisions. Mentally disabled adult children may become wards of their parents when the parents seek to extend their guardianship beyond childhood. Sometimes guardianship is also sought over a minor not under the parents' care by right of birth or over an aging senior who has lost decision making abilities.

In anyone's life there are many circumstances arising in which the informed consent of the individual is required: medical situations, for financial transactions, applications to schools, signing of contracts, etc. On the one hand, New York seeks to protect the disabled against being taken advantage of, but it recognizes that certain cases call for guardianship over such persons and that by entrusting them to a parent or other person who will act in their interests and treat them fairly they will best protect them against possible manipulation.

Two Types of Guardianship in New York

Article 17A provides for guardians to handle almost all of the ward's decisions, essentially the rights of parents are put in effect. Any Surrogate Court in any New York county can assist in gaining this status, some minimal paperwork and the certification of one or more doctors being required to obtain it.

Article 81 status is customized to the individual case, and only grants partial control over the ward's affairs. For those with only mild mental handicaps but who are able to clearly communicate their desires and decisions, this is the preferred type of guardianship. The assistance of a lawyer who specializes in guardian law will be needed to complete the process for an Article 81 case.

Standby Guardianship

When you establish your own guardian status, it is best to take care of choosing a standby guardian at the same time. This person will take over your responsibilities for the ward upon your death or inability to continue the duties of guardianship.

The Need to Act Quickly

It can take up to six months is some cases to finish the process of gaining guardianship over an adult child, so one should not wait until the child has already turned 18 to begin. During an interim with no guardian, your child could run up against any or all of the problems that guardianship is designed to prevent.