As if the parents of children with disabilities didn’t have enough stress and worries to confront on a daily basis, the COVID 19 pandemic has pushed to the forefront the possibility of their own mortality and the issue of whom will undertake the role of being the legal guardian and primary caretaker of their disabled child (minor and/or adult).
Obviously, if the child is a minor and has two parents, the surviving parent would continue to be the legal guardian during the child’s minority (in New York, until age eighteen (18)). Once the disabled child has attained the age of 18, depending on their incapacities, diagnosis and needs the parent should strongly consider being appointed the legal guardian for the child. If the child’s disability warrants the appointment of a guardian, it will allow the parent the ability to continue to make financial and personal decisions for the child who is unable to do so for his or herself.
In New York, there are two (2) types of Guardianship proceedings that can be utilized to obtain Guardianship over a disabled child. A proceeding under Article 17-A of the Surrogate’s Court Procedure Act (“17-A”) is commonly utilized for soon-to-be adult children that have “developmental and/or intellectual disabilities” that manifest before the age of twenty-two (22), such as autism, autism spectrum, traumatic brain injuries, epilepsy, dyslexia and other neurological and intellectual disabilities. Physical and functional disabilities when paired with the above are also of relevance.
A Guardianship proceeding commenced under 17-A requires the sworn report of two treating physicians and/or one psychologist and a physician, as to the developmental and/or intellectual disabilities of the child, which must be submitted to the Surrogate’s Court in support of the proceeding. To be appointed 17-A Guardian, it is incumbent upon the Petitioner to establish that a guardianship is needed, that the individual is permanently or indefinitely incapable of handling his / her own personal and financial affairs due to a developmental and/or intellectual disability which manifested before the age of 22.
If appointed 17-A guardian of the person and property by the Surrogate’s Court, the guardian will be given extensive authority relevant to the child’s health care, personal and financial affairs. Typically, a guardian of the property is only granted in the event there are assets titled to the child’s name. 17-A Guardianships have typically been criticized as being too rigid and restrictive, as they have not in the past been tailored to the child’s specific needs. In recent years, the Surrogate’s Court has been careful to assure that the appointment of Guardian(s) is the least restrictive means available to handle the affairs of the child. They have also begun tailoring the powers given to the Guardian based on the facts at hand and the individual’s specific needs and abilities.
Unlike 17-A Guardianships, an Article 81 Guardianship Proceeding under Mental Hygiene Law of New York (“Article 81”) is a proceeding commenced in the Supreme Court of the State of New York, not the Surrogate’s Court. Unlike the 17-A proceeding, the Article 81 does not require the sworn statements of a physician and/or psychologist.
In an Article 81 Guardianship proceeding the Court need only find that the individual is an incapacitated person that requires assistance with his or her personal and financial affairs and that they are unable to appreciate the consequences of their functional limitations. The finding of a need for a Guardian under Article 81 inherently allows the Court to fashion and tailor it’s finding to the specific needs, limitations and abilities of the individual.
That being said, while Statutory Article 81 Guardianships do not have any age limitation or restriction, they are generally used where an adult, not a minor, requires a Guardian. The rules of the Courts in each County should be reviewed before filing a Guardianship petition for either Article 17-A or Article 81.
Alternatively, for a high functioning disabled child, the parents should consider alternatives to guardianship such as the execution of a Health Care Proxy and Power of Attorney by the disabled child once he or she reaches the age of eighteen (18).
In Conclusion, there are many steps that a parent and/or caretaker of a disabled child can take in order to plan for the disabled individual’s future needs and care. An experienced attorney who handles Guardianship Proceedings, Special Needs Planning and Estate Planning should be contacted to discuss all options available.
Lauren C. Enea, Esq. is an Associate at Enea, Scanlan & Sirignano, LLP. She concentrates her practice on Wills, Trusts and Estates, Medicaid Planning, Guardianships and Special Needs Planning and Probate/Estate Administration. Ms. Enea believes it is never to early or too late to start planning for your future. She is admitted to practice law in New York and Florida and is an active member of the Executive Committee of the New York State Bar Association (NSYBA) Elder & Special Needs Section. She can be reached at (914) 948-1500 or at L.Enea@esslawfirm.com. Please visit www.esslawfirm.com for more information.