Practice Area Overview
GUARDIANSHIP PROCEEDINGS
If you are considering applying for guardianship of a loved one, we can to 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 and alternatives to guardianship that may be considered.
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 include Alzheimer's Disease, dementia or traumatic brain injury.
In Article 81 guardianship cases, the court may appoint a guardian upon a determination that: (1) the appointment of a guardian is necessary to provide for the personal needs
or property management
of the individual, or both; and (2) the individual is incapacitated or agrees to the appointment of a guardian. Powers granted to a guardian under Mental Hygiene Law Article 81 are generally tailored to meet the individual's
specific needs and afford the individual the greatest amount of independence.
SURROGATE'S COURT PROCEDURE ACT (SCPA) ARTICLE 17A
Guardianships brought under SCPA Article 17A allow a court to appoint a guardian for an individual who is cognitively or develomentally impaired 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 impairements.
The court may appoint a guardian of a cognitively or developmentally impaired individual if the court finds that
such appointment is necessary and is in the best interests of the individual.
ALTERNATIVES TO GUARDIANSHIP
Alternatives to guardianship that may be considered include the following:
- Health Care Proxies
- Powers of Attorney
- Supplemental Needs Trust
- Caregivers
- Joint bank accounts
