Guardianship

In addition to guiding clients through more typical estate planning matters, we also provide knowledgeable advice about guardianships.

Guardianships arise when a person is unable to manage their health and/or financial matters due to age, incapacity, or disability. If an individual lacks appropriate estate planning documents appointing agents to make decisions on their behalf, or the estate planning documents that they do have don’t convey sufficient authority to address all of their needs, they may find themselves in a guardianship situation.

In New York State, there are three different kinds of guardianship proceedings which are found in Articles 17 and 17-A of the Surrogate Court Procedure Act (SCPA) and Article 81 of the Mental Hygiene Law (MHL). Although guardianships are a wonderful tool when necessary, disability rights advocates and Courts encourage the use of less restrictive alternatives such as supportive decision making, when appropriate.

Article 17

When a person is under age 18 (a minor), they are not able to adequately care for their own well-being or their property. In that case, a petition would be brought in Surrogate’s Court under Article 17 of the Surrogate’s Court Procedure Act (SCPA). Under the SCPA, the Court is authorized & empowered to appoint a guardian of the person and/or the property of a minor child whether or not the parent(s) of the child are living. Once a guardianship is established, the guardian will typically have power to manage the minor child’s personal and/or financial needs until they turn 18 years old. Individual cases vary according to those particular circumstances. To ensure the most appropriate pathway to guardianship for your loved one, it’s best to work closely with an attorney to determine the best course of action. At Meier Law Firm, PLLC, we can advise and represent you through this process. Our lawyers are here to listen to you, advocate for you, and guide you through the legal and practical steps involved in getting a guardianship over your loved one.

Article 17-A

When the individual in need of a guardian is an adult (18 years of age or older) with an intellectual and/or developmental disability and their disability began prior to that person’s 22nd birthday, the petition for guardianship would be brought in Surrogate’s Court under Article 17-A of the Surrogate’s Court Procedure Act. (For individuals who have an intellectual or developmental disability that began after their 22nd birthday, please refer to an Article 81 petition). Once a guardianship is established, the guardian will have power to manage the personal and/or financial needs of the incapacitated person (ward). Individual cases vary according to the particular circumstances involved. To ensure the most appropriate pathway to guardianship for your loved one, it’s best to work closely with an attorney to determine the best course of action. At Meier Law Firm, PLLC, we can advise and represent you through this process. Our lawyers are here to listen to you, advocate for you, and guide you through the legal and practical steps involved in getting a guardianship over your loved one.

Article 81

If someone aged 18 or over becomes incapacitated as a result of an illness or injury after they turn 18, then a guardianship petition would be brought in Supreme Court under Article 81 of the Mental Hygiene Law. Once a guardianship is established, the guardian will have power to manage the personal and/or financial needs of the incapacitated person (ward). Individual cases vary according to their particular circumstances. To ensure the most appropriate pathway to guardianship for your loved one, it’s best to work closely with an attorney to determine the best course of action. At Meier Law Firm, PLLC, we can advise and represent you through this process. Our lawyers are here to listen to you, advocate for you, and guide you through the legal and practical steps involved in getting guardianship over your loved one.

Supportive Decision-Making

When deciding whether to appoint a guardian over an individual’s person or property, one of the court’s chief considerations is whether there are less restrictive options available that would allow the individual in question to retain some level of self-determination but also provide him/her with the assistance necessary to safely and appropriately manage their health and/or financial matters. Depending on the circumstances, some individuals may be able to adequately attend to their own health and financial matters through informal arrangements. For example, a person may be able to retain all ultimate decision making but enlist a team of supportive family, friends and/or professionals who they rely upon to help him/her work through important decisions, weighing the potential pros and cons and suggesting reasonable alternatives. For others, a more formal arrangement might be necessary: depending upon a person’s degree of capacity, they may be able to execute a power of attorney (appointing an agent to assist them with significant financial decisions) and/or a health care proxy (appointing an agent to make healthcare decisions once they are no longer able). Sometimes, a mix of formal and informal arrangements is the best solution.

It’s best to work closely with an attorney so that you’re aware of all of the possible options based upon your particular circumstances and can determine the best course of action for the future. At Meier Law Firm, PLLC, we can advise and represent you through this process. Our lawyers are here to listen to you, advocate for you, and guide you through the legal and practical steps involved in determining whether supportive decision-making is a suitable alternative to guardianship.

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