Common Questions About Guardianship
As someone who assists parents with 17-A guardianship petitions, I receive many questions regarding various aspects of guardianship. Below are some of the more common questions along with answers as I understand them to be correct. The information provided is merely intended to guide you and is not designed or intended to provide legal advice. With that caveat in mind, I hope you find the following information useful.
Why would I need guardianship for my child?
If you need to continue to make medical and dental decisions and advocate for your child once he/she reaches the age of 18, you will need to petition for guardianship.
Some people tell me that I need to petition for guardianship when my child reaches age 18. Others tell me age 21. Which is correct?
Once your child reached age 18—the age of majority—you no longer have the legal right to make medical and dental decisions for your child. You must petition the court in order to be granted the authority to continue to make these decisions on behalf of the disabled individual.
Can I begin the guardianship process if my child is already 18 years old?
I’ve heard that there are different kinds of guardianship. Is that true, and if so, what are they?
Yes, there are different types of guardianship.
One type is an Article 17-A guardianship which is petitioned through the Surrogate’s Court and grants the guardian authority over the person or person’s property, or both. Article 17-A guardianship is specifically for individuals with mental retardation and/or developmental disabilities.
Article 17-A guardianship of the person provides you with the authority to make decisions regarding the individual’s personal needs—medical, residential, educational, etc.
Article 17-A guardianship of the property provides you with the legal authority to make financial decisions for the person in conjunction with the Clerk of the Surrogate’s Court.
If the circumstances dictate, the parents can petition for both the person and property.
Article 81 guardianship is a tailored guardianship for individuals whose capacity is called into question, whether due to age or mental impairment. These proceedings take place in Supreme Court and legal representation is required.
When should I begin the process?
The guardianship process typically takes 6-10 months. If you want a seamless transition, you may want to begin the petition shortly after your child’s 17th birthday.
Can I petition for guardianship myself instead of using an attorney?
Yes. This method is referred to as “pro se.” Many parents, however, find the paperwork onerous and cumbersome. A third option is to have someone assist you in completing the petition.
If I’m divorced, does my ex-spouse need to be involved in the petition process?
Assuming that your ex-spouse is still alive, he or she will need to be involved. Sorry.
Is being guardian and trustee for my child’s Special Needs Trust the same thing?
No. While the same person may be both guardian and trustee, the roles are separate.
Am I financially liable if I become 17-A guardian?
Guardianship of your child or sibling does not mean that you are financially responsible for him. There is no obligation of support or to be the caregiver. You are also not legally or criminally liable for the action of your ward. Consult an attorney to discuss your personal situation and to confirm accuracy of this information.
If I move to another state, is my guardianship still good or do I need to go through the process again?
If you move to another state, you will probably want to consult with an attorney in that state to evaluate your guardianship decree as it relates to that state.
What is a standby guardian?
The standby guardian is the person named by the primary guardian(s) as the individual to take over when the primary guardian becomes incapacitated or dies. The standby guardian must bring a Successor Petition in the court so as to be appointed Primary Guardian.
How old does the standby guardian need to be?
At least 18 years of age.
Will I need to appear in Court?
It depends on the county. Suffolk County, as a general rule, does not require parents to attend a hearing while Nassau County does. Each county is different so you need to check with the county you reside in.
Can I become co-guardians with one of my adult children?
Some parents do become co-guardians with one or more of their adult children. This is a more common situation when there is one remaining parent and that parent is elderly and/or disabled. The adult child is usually mature in years and there is enough trust and experience so that all parties feel comfortable in making medical decisions together and without friction. One of the advantages of doing this is to avoid the necessity of bringing a Successor Petition upon the death of the primary guardian. One potential disadvantage is that the co-guardians could disagree and become adversarial. There may be other advantages and disadvantages when considering co-guardianship.
Can I use a Health Care Proxy instead of guardianship?
You should consult an attorney if you feel that this is a viable option. Your disabled child would need to have the requisite intellectual capacity so as to make use of this option.
Can guardianship be revoked?
A 17-A guardianship is considered to be for life. Whether you would be able to have it revoked at a later date would depend on the circumstances at that time. If you feel that your child may not require lifelong guardianship, or that you want to have the least restrictive type of guardianship, you should explore your options with legal counsel experienced in this area.
Craig Marcott is not an attorney and the information above should not be construed in any way as providing legal advice. It is intended as an overview and for general information only. Legal counsel should be consulted for specific legal advice pertaining to your individual situation.