The appointment of a Guardian in New York requires the commencement of a Guardianship Case in the Court. It may be difficult at times to determine the appropriate procedures and the proper Court concerning these matters. There are Guardianships under Article 17-A of the Surrogate’s Court Procedure Act (SCPA). Article 81 of the New York Mental Hygiene Law (MHL) also sets forth a means for the appointment of a Guardian.
A recent Brooklyn Guardianship case decided by Brooklyn Surrogate Margarita Lopez Torres dated December 5, 2018 entitled Matter of Eli T., provides an excellent explanation of the various statutory frameworks. As explained by the Court, the Article 17A rules concern Guardianships for people who are deemed to have an intellectual or developmental disability. The disability must be permanent or indefinite. In these cases the petition to the Court must include certifications from licensed physicians and psychologists. The Surrogate pointed out that the Article 17A procedure is not only limited regarding the type of disability that can be considered, the resulting Guardianship results in a complete deprivation of the incapacitated person’s rights.
In contrast, an Article 81 Guardianship, which is filed in the New York State Supreme Court, can involve all different types of disabilities. Most importantly, this proceeding can mold the terms and restrictions of the appointment to meet the needs and requirements of the incapacitated person. The Court attempts to provide the least restrictive conditions on the individual so that they can retain some decision making power. A lot depends upon the person’s ability to handle their activities of daily living.