GUARDIANSHIP PROCEEDINGS
If you are considering applying for guardianship of a loved one, we can discuss the types of guardianships, legal standards, and legal procedure involved in commencing a guardianship proceeding. Below is a brief description of two types of guardianship proceedings.
MENTAL HYGIENE LAW ARTICLE 81
Mental Hygiene Law Article 81 governs the appointment of a guardian for the personal needs and/or property management of an individual who is alleged to be incapacitated. Such guardianship proceedings may be brought for those suffering from cognitive or physical impairments that render the individual unable to attend to his or her personal needs or financial affairs. Some examples may include Alzheimer’s Disease or dementia.
In Article 81 guardianship cases, the court may appoint a guardian upon a determination that: (1) the individual is incapacitated and the appointment of a guardian is necessary to provide for the personal needs and/or property management of the individual; or (2) the individual agrees to the appointment of a guardian. Generally, powers granted to a guardian under Mental Hygiene Law Article 81 are tailored to meet the individual’s specific needs and afford the individual the greatest amount of independence.
SURROGATE’S COURT PROCEDURE ACT (SCPA) ARTICLE 17-A
Guardianships brought under the Surrogate’s Court Procedures Act Article 17-A, allow a court to appoint a guardian for an individual who is “intellectually disabled or developmentally disabled” (as defined in the Act) and has reached the age of majority. In New York the age of majority is 18 years old. These guardianship proceedings require the filing of a petition, with certifications from one licensed physician and one licensed psychologist; or by two licensed physicians, one of whom has professional knowledge in the care and treatment of individuals with cognitive or developmental impairments. The Surrogate’s Court may appoint a guardian of the person, the property, or both, when the court finds that such appointment is necessary and is in the best interest of the individual. In an Article 17-A guardianship, the powers granted to a guardian are broad.