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Guardianship Options

Guardianship Options

Q: I have a daughter that is 18 years old and has Autism. I know that I need to become her guardian to make decisions for her, but I am not sure about the options.  Can you explain them to me?

A: In New York State, when a person turns eighteen, they are presumed to be legally competent to make decision for themselves. However, if a person is intellectually disabled or developmentally disabled, as defined by Article 17-A (“Article 17-A”) of the Surrogate’s Court Procedure Act, a parent or concerned relative can ask the Surrogate's Court to appoint a guardian to assume the decision-making functions for that person. If a young adult has issues with mental illness or other functional limitations, a parent or concerned relative can ask the Supreme Court to appoint a guardian for that person under Article 81 (“Article 81”) of the Mental Hygiene Law.

Article 17-A was originally enacted in 1969 to provide a means for parents of disabled children to continue to make decisions once their children reached adulthood. The belief was that the condition was permanent with no likelihood of improvement. The same powers that parents held over minors were continued for the rest of the person's life.

Article 81 was enacted in 1993 and is directed towards adults who have lost or have diminished capacity. It anticipates closely tailored guardianships, granting the guardian, no more power than is necessary under the circumstances, and aims to preserve autonomy to the greatest degree possible.

Article 17-A is almost purely diagnosis driven, while Article 81 requires a more refined determination linking functional incapacity, appreciation of danger, and danger itself. Unlike Article 81, Article 17-A provides no gradations and no described or circumscribed powers. Article 17-A is considered a plenary guardianship, meaning that the guardian has full power to make any and all decisions.

Even when young adults meet the medical criteria for an Article 17-A guardian, courts are taking a more wholistic view and looking at that person’s functional capacity and assessing if an Article 17-A guardian is the least restrictive alternative or if an Article 81 guardianship is appropriate to address a certain deficit.

For instance, if your daughter has a diagnosis of autism where he or she is considered “mid to high functioning” by the medical experts and may only need assistance in making medical decisions, an Article 17-A guardian may not be the least restrictive alternative, a limited Article 81 guardianship may be more appropriate.   The court would also want to know if your daughter could execute advance directives such as a health care proxy and power of attorney so you could continue to assist medical or financial decisions for your daughter without court intervention.

Before taking any actions towards guardianship for your daughter, you should consult with an attorney experienced with the different types of guardianships.  

 

- Nancy Burner, Esq. and Kera Reed, Esq.

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