Guardianship In New York State
The provisions of Article 17 and Article 81 of the Mental Hygiene Law govern guardianship proceedings in New York State. A guardianship is a legal proceeding in which a court appoints an individual or entity to make decisions for a person who, due to mental or physical disability, cannot manage their own personal or financial needs. Pursuant to both statutes, a guardian will be appointed only if the incapacitated individual agrees to the appointment or is determined incapacitated by the court of proper jurisdiction.
Article 17 Guardianship (for a minor)
When a child under 18 years of age is due property either from an inheritance or a personal injury settlement, and the property is valued at more than $10,000, a court must supervise the management of the assets. The policy behind the law is to conserve and protect the assets throughout childhood. Upon the age of majority, the assets are turned-over to the child.
Article 17A Guardianship (for developmentally disabled)
A guardianship proceeding under Article 17A entails the appointment of a guardian for a developmentally disabled or mentally challenged adult over the age of 18. In the State of New York, once a person reaches the age of 18, no one person has the legal authority to make personal, medical or financial decisions for that person except that individual. A parent with a child who is developmentally disabled may want to establish an Article 17A guardianship so that they may have the legal authority to make decisions concerning the health, welfare, and financial affairs of their adult child. An Article 17A Guardianship proceeding is generally brought in the Surrogate’s Court in the county in which the disabled person resides.
Article 81 Guardianship
A guardianship proceeding under Article 81 is appropriate when an individual suffers from functional or cognitive limitations that are likely to cause the person harm. The incapacity may be the result of an accident, an unforeseen illness, or a slow progressive disease. In such cases, the court can appoint a guardian to assist the incapacitated adult with aspects of life that the individual is unable to manage. An Article 81 Guardianship proceeding is generally brought in the Supreme Court in the county in which the incapacitated person resides.
Who Can Establish a Guardianship?
Any competent adult such as a parent, family member, friend, the executor or administrator of an estate, trustee of a trust, or any other interested person including a state organization or agency, may establish a guardianship by filing a petition with the court.
Legal Help to Obtain Guardianship in New York State
Whether you wish to bring a guardianship petition, are opposing a guardianship or are acting in the capacity of a court-appointed guardian, attorney Kamilla Mishiyeva can explain the pertinent guardianship issues and ensure that you understand your duties and obligations. Call us today for a free consultation at (646) 535-1667.