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December 7, 2013

From the Office: Guardianship can be a complicated legal issue


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. 

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