What is a “Guardianship” for Disabled Individuals?

Many people think of a guardianship as being a legal affair that determines who will raise a minor child (such as a parent, or a non-parent if both parents are unavailable); I shall cover this type of guardianship in the future.  A Guardianship Proceeding over a disabled individual essentially takes place when a person can no longer make financial or health care decisions. There are  two types of Guardianship Proceedings: Those for minors who have always been disabled and are nearing the age of majority, and those for adults who once had mental capacity but no longer do.

For people who are disabled as minors the Guardianship Proceeding takes place under New York’s Surrogate’s Court Procedures Act, Article 17-A (lawyers refer to this as a “SCPA 17 A” proceeding). These proceedings are typically easy, since the parent(s) usually takes proactive steps early in the child’s life and automatically becomes the child’s legal Guardian the moment the child is no longer a minor. The main sticking point is what happens once the parent(s) pass away: What other children (if any) will become (or want to become) Guardian for their disabled sibling? That aspect aside, procedurally, Art. 17 and 17-A Guardianships are typically not the source of a major dispute.

When a person is competent at one point as an adult but then loses the mental capacity to make financial or health care decisions the process is a bit more involved. These proceedings are governed by New York’s Mental Hygiene Law, Article 81 (colloquially called an “Article 81” between Elder Law practitioners). A person with serious dementia, mid-stage Alzheimer’s, advanced Parkinson’s disease and the like were once vibrant, successful individuals, but have now lost their mental faculties. New York assumes that responsible adults will execute a Health Care Proxy (for health care decisions) and Power of Attorney (for financial decisions) while they have mental capacity; if a person has these documents there is often no need for an Article 81 Guardianship. The costs for having an experienced attorney drafting and executing these documents is approximately $500 – $1,500.

Of course, many people do not have these documents and have to pay many MANY times this amount to rectify the problem if they do become incapacitated. States require that a person be able to make health care and financial decisions, or name a surrogate to do so for them if they are unable. When a person cannot make these decisions and no agent has been named, the proper (expensive) legal recourse is an Article 81 Guardianship.

In uncontested Guardianships the “Alleged Incapacitated Person” (or “AIP”) has a friend or family member petition the court to become “Guardian of the Person” (health matters) and / or “Guardian of the Property” (financial concerns). The proposed Guardian retains an attorney, the AIP is designated an attorney by New York’s Mental Hygiene Legal Services, the judge appoints yet ANOTHER attorney who acts as their eyes and ears that is known as the Court Examiner (whom some people refer to as the “judge’s Golf Buddy” or “Judge’s Campaign Contributor”); a Geriatric Care Manager is often assigned to investigate the fitness of the proposed Guardian and whether the AIP is truly incapacitated, and the court will grant the Guardianship if they make a finding of incapacity, as well as place specific limitations on the Guardian based on the AIP’s condition. This process can be expensive: An uncontested Guardianship in southern New York costs anywhere from $5,000 to $10,000, depending on the complexity of the case. And by the way, the court has the discretion to say that the AIP’s funds may be used to pay for ALL of these expenses.

A contested Article 81 Guardianship is both more expensive and more gut wrenching. Typically two siblings are fighting over control of mom or dad’s financial decisions: While some children honestly care about their parent’s health care needs and will vigorously pursue acting as the Guardian of the Person, almost all of them want to oversee mom and dad’s money as Guardian of the Property. Of course, the AIP may have a good deal of money and property, which adds to the difficulty facing the court – remember that the court is essentially limiting a person’s ability to make health care and financial decisions, which (in non-legal terms) is a pretty big deal. Perhaps sibling rivalries now come to a head and there is a feeling that past scores must be settled; perhaps a more remote family member care giver is absconding with funds or trying to have a Will changed naming them as the beneficiary; maybe a noticeably younger individual is trying to marry the AIP in the hopes of receiving money upon the AIP’s death. Now at least one more attorney is involved (and legal disputes almost always lead to more legal fees than uncontested proceedings), more court time is involved, greater attention is given to health and financial records, and the AIP’s mental capacity is even more closely scrutinized. And there are plenty of dirty tricks attorneys pull too, such as baiting their own client not to call Adult Protective Services, unless they feel the other sibling is harming the parent (duh, of course that is how they feel, and so they call), causing APS to get involved in the process. And after a decision is made by the Court the “loser” of the contest will continue to pick away at the named Guardian, often to the level of borderline harassment. Contested Guardianships ruin families, may humiliate the AIP, and can cost tens of thousands of dollars,all which may be collected from the AIP’s funds.

Remember that working with an experienced estate planning or elder law attorney may help to avoid these problems. The law expects competent individuals to handle their legal affairs both now and in the future, and does not often pay much attention to what verbal statements were made in the past. Create a solid Health Care Proxy and Power of Attorney with a trustworthy attorney who can give advice as to how to avoid a Guardianship. Paying for legal concerns up-front not only costs much less money, but it also better ensures that your desires are actualized upon your incapacity.

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