There are three basic types of guardianship under New York law.
Below are three case studies that demonstrate how each operates and why they are necessary.
Case Study #1
Susan and her Mother Joan:
Article 81 Guardianship
Susan is 45 years old and her mother Joan is 72. Joan has lived independently in her home for the past five years since her husband died. Over that time period, Joan has become increasingly forgetful. She can no longer manage her finances and she sometimes does things that threaten her safety, like leaving the stove on after making tea. Susan took Joan to her doctor, who diagnosed Joan as having moderate Alzheimer’s Disease.
Susan took Joan to an elder law attorney, who advised that he did not think Joan could knowingly sign a power of attorney or health care proxy. As a result, Joan could not give her daughter Susan the authority to handle her financial or medical decision making. Susan is available and interested in helping her mother. What does Susan do?
Susan can bring a guardianship proceeding under Article 81 of the Mental Hygiene Law (MHL) in Supreme or County Court. Susan must prove that Joan can no longer handle her financial or personal affairs, and that she does not understand her limitations. In addition, Susan must show that Joan’s limitations present a danger to her welfare. If the Court agrees with Susan and finds that Susan would be an appropriate guardian, the Court can appoint Susan as guardian of the person and property of her mother Joan.
As her mother’s guardian, Susan can make the essential decisions regarding Joan’s finances and medical care. Her guardianship authority allows her to manage her mother’s assets, pay her bills and make decisions on medical procedures suggested by her doctor. Every year by the end of May, Susan must report on all actions she has taken as her mother’s guardian and that report will be reviewed by an examiner appointed by the court.
Case Study #2
Jeff and his Son Randy:
Article 17 Guardianship
Jeff has a son Randy, and Jeff’s mother Christine recently passed away. In Christine’s Will, she left $50,000 to her grandson Randy, who is currently twelve years old. Jeff has talked with the attorney handling his mother’s estate and was advised that the $50,000 bequest cannot be paid outright to Randy because Randy is a minor (under the age of eighteen). The attorney also advised that the $50,000 bequest cannot be paid to Jeff as the parent of Randy. What does Jeff do?
Jeff can bring a petition in Surrogates Court to be appointed as guardian of the property of his son Randy under Article 17 of the Surrogates Court Procedure Act (SCPA). Jeff’s petition will note that he is Randy’s father and will detail the property that he would control on Randy’s behalf – in this case, the $50,000 bequest. Jeff will also have to file a form with the NYS Office of Children and Family Services (OCFS), and a background check will be run on him.
If the court is satisfied, then Jeff will be appointed as guardian. The $50,000 will be placed in a special account under the joint control of the court and Jeff. Jeff will also have to report to the court every year regarding his control of Randy’s money. When Randy becomes eighteen, the balance of the account will be turned over to Randy as a legal adult.
Case Study #3
Jim and Carol and their Daughter Meghan:
Article 17A Guardianship
Jim and Carol live with their daughter Meghan, who is 28 years old. Meghan was diagnosed as developmentally disabled when she was a young girl, and she has the intellectual abilities of a twelve-year-old child. Meghan’s condition is permanent, but she has a good life. She goes to programs sponsored by Saratoga Bridges and enjoys her time at home with Mom and Dad.
Jim and Carol are now in their early sixties and they are concerned about who is going to take care of Meghan when they no longer can. Meghan does have a younger sister Sarah, who is 25 and lives locally. Sarah adores Meghan and would do whatever is needed to help her. What do Jim and Carol do?
Jim and Carol can bring a petition in Surrogates Court to be appointed as the guardians of the person and property of Meghan under Article 17A of the SCPA. They could also ask that Sarah be appointed as Meghan’s standby guardian. Jim and Carol will need to prove by medical evidence that Meghan is developmentally disabled and that her permanent condition started before she was 22. Jim and Carol will also have to file a form with the NYS OCFS, and a background check will be run on them and Sarah.
If the court is satisfied, then Jim and Carol will be appointed as guardians of the property and person of Meghan, and Sarah will be appointed as her standby guardian. When Jim and Carol can no longer serve, then Sarah will take over – subject to later confirmation by the court. Jim and Carol will report annually to the court regarding their guardianship of Meghan.
As you can see above, MHL Article 81, SCPA Article 17, and SCPA Article 17A guardianships are critical in helping those in need. Article 81 guardianships often relate to older people suffering from dementia. Article 17 guardianships generally concern minors with assets that need management. Article 17A guardianships help caregivers act on behalf of the disabled. Guardianships can provide critical help to the ones we love and can be implemented with the assistance of an experienced estate planning or elder law professional.
Matthew J. Dorsey, Esq. is a Partner with O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY. Over his twenty years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at 518 -584-5205, This email address is being protected from spambots. You need JavaScript enabled to view it., and www.oalaw.com.
