Question: My daughter is 18 years old and is developmentally disabled. She is unable to make medical decisions for herself and cannot handle her own finances. A social worker suggested that I apply for an Article 17A Guardianship. What is an Article 17A Guardianship and is this advisable?
Answer: When your daughter turned 18, she reached the “age of majority”. Once an individual reaches the age of majority, they are both legally permitted and solely responsible for making their own decisions regardless of their disability. More importantly, what this also means is that even when an individual is disabled and unable to make his or her own decisions, and lack the capacity to appoint someone to make those decisions, their parents or loved ones cannot continue making those decisions for them without being appointed by the court to do so. In order to accommodate disabled adults, Article 17A of the Surrogate Court Procedure Act was enacted. This provision allows a parent or other suitable adult, to petition the Surrogate’s Court to be appointed Guardian, enabling that person to continue to act on behalf of the disabled individual beyond the age of majority. There is also a provision to have an alternate or “standby” guardian appointed at that same time, to act in your place should the time ever come that the initial guardian is unable to act.
There are three types of Guardianship: Guardian of the Person, Guardian of the Property and Guardian for Limited Property. A Guardianship of the person enables the guardian to be the medical decision maker for the developmental disabled individual. A Guardianship of the property enables the individual to manage the financial assets of the developmentally disabled individual. However, where there is a need for a property management Guardian, the court requires that assets are to be held jointly with the Guardian and the Surrogate. What this means is that the Guardian must get the Surrogate’s permission prior to the release of any funds from a banking institution. For this reason, in certain situations we recommend a different type of proceeding called an Article 81 Guardianship. The third type of Guardian is a limited Guardian of property. This scenario allows the developmentally disabled individual to retain a small bank account with any excess above the allowable amount to be held by the limited guardian and the Surrogate. It is important to note that you can apply to be named Guardian of the Person and Property in one application. The same person can be named in each position or you can ask the court to name separate Guardians for each power.
Each family’s situation is different, and for this reason it is advisable for you to consult with a guardianship attorney who is knowledgeable in this area to ensure that you are doing what is best for your family.