Ellen L. Baker, Of Counsel
Ellen L. Baker, Of Counsel at McCabe and Mack, has become a well-recognized practitioner in the areas of law that she has practiced for decades: estate planning, estate and trust administration, and elder law. While all of this work is deeply rewarding for Ellen, she especially feels fulfilled when supporting families and caregivers of people with special needs, for whom guardianship is a critically important topic.
We asked her to respond to some frequently asked questions on the subject, and here is what we discovered:
Ellen, how does one define ‘guardian’?
A guardian is a court-appointed surrogate decision-maker for an individual who cannot handle his/her/their own affairs.
What are the different types of guardianship in New York State?
There are at least 3 types of guardianships governed by the Surrogates Court Procedure Act.
Article 17 deals with the guardianship of a minor under the age of 18 years old.
Article 17A governs the appointment of a guardian for a person with an intellectually or developmental disability who were diagnosed with those disabilities prior to the age of 22; or a person who has suffered a traumatic brain injury at any age. When an Article 17A guardian is appointed, there is little room for flexibility and the disabled individual’s rights to make independent decisions are fully abandoned.
Article 81 is typically for adults who have lost “capacity”. It is based upon a person’s “functional limitations” and not medical history. The court tailors the powers of the guardian in an effort to only impose the “least restrictive” form of intervention. When it was first enacted, it was done so for older adults who are considered to be in decline – but is now also applied to those with developmental disabilities who are very high-functioning and quasi-independent.
Are there other options for those with developmental disabilities who are higher-functioning, who wish to secure support in life without having a formal guardianship in place?
Yes, high-functioning individuals can appoint a Power of Attorney to help with banking, legal, and other transactions for which they might need assistance. In addition, a Health Care Proxy can be completed to ensure that an individual has been authorized to help manage medical care and make health-related decisions if needed. Those documents do not expire, but can be changed if circumstances evolve in any way.
Can someone designate me a guardian without my knowledge or consent?
No. You would have to sign a form consenting to act as a guardian.
What is required in order to petition for guardianship?
In an Article 17A proceeding, two physicians or a physician and a licensed psychologist are required to provide medical evidence of the disability before a guardian can be appointed.
With Article 81, the petitioner, the person who is seeking the appointment of a guardian for an individual, must provide evidence to the court of the individual’s inability to manage their personal or property needs. In the alternative the individual can consent to the guardianship.
The Court will also appoint a guardian ad litem in an Article 17A proceeding and a Court Evaluator in an Article 81 proceeding, to examine the situation and give an objective opinion as to whether the guardianship is needed.
If I want to petition for guardianship, such as in a case where someone suddenly becomes incapacitated and needs support – how do I do that?
First, you would want to determine if an individual has a Power of Attorney and Health Care Proxy. Those documents usually obviate the need for a guardianship. If the individual does not have these documents, you would need to file a petition in Court for the appointment of a guardian. In most cases, where an individual suddenly becomes incapacitated it would be an Article 81 guardianship. If there is an emergency situation, the Court can appoint a temporary Guardian who would act, pending a full guardianship proceeding.
Every competent adult should have a Power of Attorney and a Health Care Proxy. Guardianship proceedings can be time consuming and costly.
For further information or a consultation, contact Ellen L. Baker, Of Counsel at McCabe and Mack LLP by phone: 845-486-6850 or email: firstname.lastname@example.org.