In New York State, parents of a person with an intellectual or developmental disability are deemed the Parent and Natural Guardian of that person until they turn 18. Once the disabled party has reached the age of 18, New York State law indicates that he/she is a competent adult who should be able to manage their everyday lives on their own.
Many parents panic when a disabled child nears the age of 18, fearing what can occur when they are unable to legally continue to look after their child’s physical and financial needs.
There ARE options. You CAN still care for your child.
Let’s look at Article 17A Guardianships, how they work and what they entail, to help you determine if they are a possibility for your family.
As mentioned above, once an intellectually or developmentally disabled child reaches the age of 18, he/she is deemed a competent adult. In some situations, this classification may be appropriate; while in others, the need for parent(s) to continue their role as guardian is entirely necessary.
In order for parent(s) or caretaker(s) to continue their role as guardian over an intellectually or developmentally disabled child who is 18 or older, the parent must petition their local Surrogate’s Court for what is known as an Article 17A Guardianship. The aptly named ‘Article 17A Guardianship’ is governed by Article 17A of the Surrogate’s Court Procedure Act (SCPA). Although most court proceedings are associated with a certain stigma of complexity and confusion, the Article 17A Guardianship process is not nearly as taxing as you might think.
Understanding Types of Article 17A Guardianship
In order to commence the guardianship action in Surrogate’s Court, your attorney will likely ask you if you would like to be appointed as a guardian of the person, property, person and property or as a limited guardian of the property.
If you would like to only manage the disabled party’s personal well-being (i.e. health, safety, welfare) one would apply to be a Guardian of the Person; if you would like to only manage the disabled party’s finances (i.e. bank accounts, pay expenses, etc.) one would apply to be a Guardian of the Property; and if you would like to manage both the disabled party’s health and well-being along with his/her finances one would apply to be a Guardian of the Person and Property. The appointment of a Limited Guardian of the Property is necessary when the disabled party for whom an application for guardianship is made is substantially self- supporting by means of his/her own earnings from employment. In this instance, the court is authorized to appoint a Limited Guardian of the Property who manages and accounts for all financial property of the disabled party except for the aforementioned disabled party’s earnings from employment.
Completing the Petition for Appointment of Guardian
Once the type of guardianship has been determined, it will be necessary to complete the Petition for Appointment of Guardian. In order to ensure that the Petition can be completed without issue, please take note of the following checklist of items that will be required in order to complete the Petition. Although this list may seem intimidating at first, please realize that the majority of this information will be readily available to the caretaker of the disabled party.
Again, although this list looks long and intimidating, the information required to complete the petition should be readily available to the current caretaker of the disabled party. Any information that is not available can be obtained through most public service agencies with some assistance from your attorney.
What You’ll Need to Submit to the Court
Affidavit with key Guardian information. In addition to the aforementioned petition, the Proposed Guardian will also be required to submit an Affidavit to the Surrogate’s Court that states his/her relationship with the disabled party, lists all members of the Proposed Guardian’s household and their dates of birth, details his/her educational background, lists any past criminal charges (other than minor traffic offenses and adjudications as a youthful offender or juvenile delinquent), provides information regarding any mental impairments and/or medical conditions that may interfere with their ability to perform their duties as guardian and states why said Proposed Guardian would make an appropriate guardian for the disabled party. This Affidavit should be prepared by your attorney and submitted along with the Petition.
Affidavits from Physician(s). The petitioner will also be required to submit two (2) Affidavits of Examining Physician or Licensed Psychologist that are prepared and signed by the disabled party’s primary physician (if available) and/or additional physician or licensed psychologist. These Affidavits indicate the disability that the disabled party is suffering from (i.e. mental retardation or developmental disability) and are required to be submitted along with the documents that we have previously discussed. Your attorney should promptly mail these Affidavits to the physicians of your choosing in order to ensure that they are completed and returned as soon as possible. Speaking from experience, there is nothing more frustrating than waiting for the return of supporting documents such as these when all other items have been completed and are ready for filing.
Form OCFS-3909. The New York State Office of Children and Family Services (OCFS) requires that all Proposed Guardians complete Form OCFS-3909 which lists the names and addresses of the Proposed Guardian and all members of the Proposed Guardian’s household. In addition, the Proposed Guardian must also provide the address history of each individual that is listed for the previous twenty eight (28) years. This form is used in order to perform background checks on all members of a household that a disabled party may be entering. As the safety and wellbeing of the disabled party is considered paramount, Section 1706 of the Surrogate’s Court Procedure Act (SCPA) requires that an inquiry be made into the New York Statewide Central Register of Child Abuse and Maltreatment as to whether the Proposed Guardian and any other individual 18 years of age or older who resides in the home of the Proposed Guardian is the subject of a child abuse or maltreatment report.
Waivers. Finally, please be advised that certain family members may be required to sign Waivers that approve of the Proposed Guardian being appointed by the Surrogate’s Court. For example, the husband and wife of a child share an equal right to become that child’s Article 17A Guardian. If the parents have agreed that only the mother will serve as the disabled party’s guardian, the father will be required to sign a Waiver that approves of his wife’s appointment and acknowledges that he does not wish to serve as same. The specifics as to who will need to sign these Waivers will be covered by your attorney in further detail at your initial meeting.
Timing Expectations for Article 17A Guardianships
As with all other legal proceedings, the turnaround time on Article 17A Guardianships will vary with each jurisdiction. In most cases, these proceedings can take upwards of two to three months to complete; therefore, it is suggested to begin the proceedings as soon as you deem it necessary, since the “wait and see” approach may cost you valuable time down the road.
The Surrogate’s Court is extremely protective of the interests of all disabled parties. Although the completion of these documents may seem redundant, especially for a caretaking parent, it is important to know that these requirements are not made to inconvenience you but to ensure that every single disabled person receives the best care and asset management possible.
You’ve Been Granted Article 17A Guardianship – What Next?
Once a guardian has been appointed, it is important to keep an accurate accounting of all income and expenses paid throughout the year. The Surrogate’s Court will require the filing of an annual accounting and it is far easier to prepare this accounting on a monthly basis rather than waiting until the last possible second. Remember, guardianships are never to be taken lightly; always keep accurate and detailed notes, records and accountings as you never know when they will be needed.
Need Assistance with an Article 17A Guardianship?
Restaino Reddien, LLP is happy to assist you and help determine the best course of action moving forward. Contact our office to set up your initial, free consultation.