New York Estate Planning & Elder Law Blog
While most of us are familiar with wills, many people in New York are not certain about the role played by other estate planning tools like guardianships. In short, a guardian refers to a person who makes decisions for another individual, who is not able to make decisions on their own.
Guardianship is appointed for children, adults faced with development or intellectual disabilities, or incapacitated adults. In the state of New York, there are several types of guardianships, which vary based on the parties who are involved. This article briefly distinguishes the differences between these types of guardianship.
# 1 – Guardian of a Developmentally or Intellectually Disabled Adult
New York law views a person who reaches the age of 18 as capable of making their own choices. In situations where a person has either developmental or intellectual disabilities, an Article 17-A guardianship petition can be filed in Surrogate’s Court over the person, the person’s assets, or both the person and the person’s assets.
To obtain this type of guardianship, certification must be received from two medical professionals. The scope of this guardianship is broad and intended to encompass most of the decisions that an individual would make for a minor child. As a result, guardianship of this type often addresses both financial and healthcare decisions.
# 2 – Guardianship Over an Incapacitated Adult
Adults who were previously able to make their own choices can suddenly become incapacitated following a serious illness. For example, a 68-year-old woman who is diagnosed with Parkinson’s due to dementia might suddenly find herself unable to make decisions for herself. In these situations, an Article 81 guardianship can be filed in New York Supreme Court. Guardianships of this type of specific about what decisions the guardian can make. If a person is only able to make financial decisions, the arrangement is sometimes referred to as a conservatorship.
Various challenges and complications can arise with Article 81 guardianship, which is why many people avoid it. Instead, utilizing a financial or healthcare power of attorney is sometimes a better option.
# 3 – Guardianship of a Minor
Minors sometimes require guardians if a person dies, leaves the area, or becomes too sick or incapacitated to adequately care for the child. In these situations, Article 17 guardianship is filed in Surrogate’s Court. Other times, a parent might appoint a guardian over the minor child in the parent’s will. For example, a guardian might be appointed to manage an inheritance that a child receives. Appointing a guardian of a minor is a big decision and requires that the person who is named to this position have the time and ability to look over a child.