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December 7, 2013

From the Office: Guardianship can be a complicated legal issue

The Daily Star

---- — Sometimes individuals cannot care for themselves. In New York, guardianship laws exist to empower others to take care of children and adults who need help to care for their persons and/or their property. This is the first of a two-part column that explores the issues and the law of guardianship in New York state.

These matters can be complex and the law is extremely detailed. This column is not intended to be a complete discussion of every circumstance that may arise or all aspects of the laws that apply. Please seek legal assistance to find out how the law applies to your specific situation. 

This portion of the article will focus on seeking guardianship for minors (those younger than 18 who are sometimes referred to by the legal term “infants”) and mentally retarded/developmentally disabled people (sometimes referred to as intellectually disabled persons). There is some overlap in these two areas because, of course, a child can also be intellectually disabled. However, for the purposes of this column, the two situations will be treated separately.

For those younger than 18 who live with a parent or parents, guardianships are unnecessary because parents are guardians simply by nature of being parents. Under certain circumstances, parents may execute a standby guardianship to name the person or people they wish to care for the child should the parent die or become incapacitated. However, if a child has been orphaned and the parent did not execute a standby guardianship or if neither of the parents is fit to have custody of the child, a third party may seek guardianship of that child. In many cases of parental unfitness, the Department of Social Services is involved in a child protective proceeding and that is the context in which those issues will be discussed.

In most situations, the third party will be a grandparent or other relative, but it is possible that it could be a non-relative. Petitions for guardianship are usually filed in either Family Court or Surrogate’s Court. The main difference is that the Family Court may only appoint guardians of the person but not of the property. A guardian of the person may make decisions about education, medical, physical custody and care of the child. However, a guardian of the person does not have the power to handle property such as life insurance benefits or a house left to the child of deceased parents. For that, a guardian of the property must be appointed, and such a guardianship is available only in Surrogate’s Court. A guardian of the person may receive recurring payments such as Social Security Survivors’ benefits on behalf of the child.

A special road to guardianship, frequently called a KinGAP guardianship, has recently been enacted in New York and may be filed in conjunction with child neglect or abuse proceedings. A KinGAP guardianship can arise when a child has been living with a relative who is also a certified foster care provider. This law requires, among other things, that the child has been in foster care with the relative for at least six months and that it is in the child’s best interest for the guardianship to be established rather than to terminate the parents’ rights and free the child for adoption. Before petitioning the court, the relative must be approved by his or her local DSS office because subsidies akin to adoption payments are available upon establishment of the guardianship. These guardianships are usually entered into with the consent of the parent or parents, but they can be ordered over a parent’s objection if the court finds extraordinary circumstances to do so.

In New York, any child who turns 18 is no longer subject to the wishes of her parents or to the dictates of any custody order that may have been in effect, which was usually entered into after the separation or divorce of the child’s parents. This means that an intellectually disabled person can move out on her own and live life as she sees fit. However, at times this could subject that person to dangers that she cannot appreciate or protect herself from because of the nature of her disability. 

Article 17-A of the Surrogate’s Court Procedure Act sets forth the process for becoming a guardian of an intellectually disabled person. In most instances, these cases will be brought by the parents of adult children with disabilities, but a petition may be filed by any interested party on behalf of the disabled person or by the disabled person herself. 

The law requires that a physician and psychologist or two physicians certify that the person is mentally retarded or has a developmental disability that has impaired his ability to understand and appreciate the nature and consequences of decisions that result in the person being incapable of managing himself and/or his affairs by reason of the intellectual disability and that the condition is permanent or likely to continue indefinitely. In most cases, the disability must have arisen before the person turned 22. The court must determine that appointment of a guardian is in the best interests of the intellectually disabled person.

The disabled person is entitled to a hearing before a judge and a jury trial if she demands one. However, the court has the discretion to forego a hearing under certain circumstances. Although not specifically stated in the statute, the court must impose a guardianship only when it is the least restrictive alternative to protect the disabled person. If the person can live securely with family and community supports without the appointment of a guardian, the court should not appoint a guardian. 

The least restrictive alternative requirement is one of the central themes in Article 81 guardianships that will be discussed extensively in part two of this columns.

Referrals for free legal services for people older than 60 are available from the Office for the Aging in the county in which the senior resides. In Delaware County, the telephone number is 746-6333.

Wayne Shepard is director of the Delaware County Office for the Aging. ‘Senior Scene’ columns can be found at