Estate Planning Isn’t Just For The Elderly

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Appointing a guardian helps protect adults in need of care

On Behalf of | Apr 16, 2020 | Guardianships

Generally, anyone 18 years of age or older is considered to be a legal adult and therefore is considered capable of making their own decisions. However, there are many adults in the state of New York who are not able to make these decisions or care for themselves. Guardianships or conservatorships provide much-needed support to adults with developmental or intellectual disabilities. These guardianships can give family members of incapacitated individuals peace of mind, knowing that their loved one will not be taken advantage of.

In the state of New York, adult guardianships are mainly managed under Article 81 of the Mental Hygiene Law and Article 17/17A of the Surrogate’s Court Procedures Act.

Article 81

A guardianship under Article 81 is generally used for adults and will focus on giving the guardian decision-making authority depending on the needs of the person. Generally speaking, the person was at one point legally competent but is not fully competent any longer. Under an Article 81 guardianship, the person will be allowed to make any decision he or she is capable of making, while the guardian will step in to make decisions only when it is necessary to do so. This allows the person to have as much freedom as possible, while still giving them protection when they need it.

An Article 81 guardianship is tailored to the needs of the individual. A court evaluator appointed by the judge will conduct a full investigation and determine whether a guardian is needed and to what extent. There will then be a hearing, and the judge will make the final decision.

Article 17A

For adults who are developmentally disabled or mentally retarded, a guardianship under Article 17A may be the best option. In order for a guardian to be appointed under Article 17A, there generally needs to be a diagnosis of incapacity. A guardian under Article 17A can have full decision-making power, and help manage both the person themselves and their property.

Anyone can file a petition for guardianship under Article 17A, including parents, friends, and other adults and can be filed at any age. However, it can be easier to file for Article 17A guardianship just before the person turns 18. There may be a hearing, but if family members agree on what should happen, everything can be handled fairly quickly.

If there is an adult in your life that is unable to fully care for themselves, it is important that they are legally protected. To find out more about appointing a guardian for your loved one, consider speaking with an attorney in your area that specializes in guardianships.