A legal guardian a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person. A person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability. Courts have the power to appoint a guardian for an individual in need of special protection.
Article 17-A Guardianships
At age 18 all of us, whether with a disability or not reach the age of majority and are free of our parents' decisions. In the case of someone with a disability, they are considered independent unless a guardian is appointed.
In reality many doctors and facilities would not question the decision of an involved parent except for end of life decisions, but it may be a consideration to become your child's guardian and put in place future guardians (stand by and alternate stand by) to be available after your death when no one would be available to give consent, and to complete planning such as a special needs trust.
Furthermore, the law has been amended to explicitly provide a guardian of a person with mental retardation, or developmental disability, with the authority to make health care decisions for such persons, including decisions regarding life sustaining treatment under certain circumstances when the guardian is appointed pursuant to Article 17 A of the Surrogate Court Procedure Act.
Article 81 Guardianships
A Guardianship under Article 81 of the NY Mental Hygiene Law allows the guardian to care for a loved one when they are unable to care for themselves. They are brought by a petitioner, through an attorney. In New York State, Article 81 Guardianships are based on a functional assessment of the Alleged Incapacitated Person (AIP) by an appointed court evaluator. The AIP may be appointed an attorney to represent their best interests.
Article 81 Guardianship can be litigious, with friends or relatives contesting the need for a guardian, who should be appointed as a guardian, or the powers the guardian is to receive. The alleged incapacitated person also has the right to, and many times does, oppose these proceedings.
The powers granted allow the Guardian of the Person, of the Property, or both. It can include the power to make applications for Medicaid as well as manage an individuals estate and affairs when they are unable to do so for themselves.
Contact us for more information on guardianship law.