Parents assume that they are the legal guardians for their children, that they are responsible for their child’s welfare, can defend their child’s rights, advocate for their child and make medical decisions for their child. Parents can do all of these things until their child reaches the age of majority—18 in New York State. Every person is regarded as a legal adult upon reaching the age of 18 whether or not there is an intellectual or developmental disability. If a parent feels that his or her child cannot take responsibility for his or her personal, financial, life decisions or legal affairs, the parent or another responsible family member or person can apply to the Surrogate’s Court in the County in which the child lives in New York State to become the child’s legal guardian.
To become a guardian for a child with intellectual or developmental disabilities, New York State has established a streamlined procedure under the Surrogate Court Procedure Act—the 17A Guardianship. The parent files a petition with supporting documents with the County Surrogate’s Court. Most parents use the services of an attorney to guide them through the guardianship process, although no attorney is required. Only the County Surrogate’s Court can establish this type of guardianship–it cannot be accomplished by will or any other means. This is a special proceeding for the appointment of a guardian for a developmentally disabled person as compared to guardianship proceedings for non-developmentally disabled persons. For persons with other types of disabilities guardianship can be obtained under Part 81 of the Mental Hygiene Law.
Why should a parent seek to be named the legal guardian of his or her child? A person with intellectual or developmental disabilities may not be able to understand their rights or medical or financial advice. They may face difficulty in obtaining medical treatment and/or social services or other services that should be available to him or her. An individual with intellectual or developmental disabilities may become liable for financial obligations regardless of his or her ability or inability to understand what they are buying or the contract they are signing or pay for them. The court appointed guardian is given the legal authority to make life decisions, manage personal and financial affairs and make legal decisions for his or her charge over the age of 18.
Who should become the guardian of my child? A parent, sibling, other family member or an interested third party like a close family friend may become the guardian. This is a very personal decision to be made by the family based upon the facts and circumstances faced by the individual with intellectual or developmental disabilities.
What are the responsibilities of a guardian? In New York, the guardian acts very much as a parent of a child under the age of 18. The guardian ensures that the rights, interests and desires of the person with developmental disabilities are met and protected. The guardian also advocates for his or her charge. It is important to note, however, that the guardian assumes no personal financial liability by virtue of being an individual’s guardian.
When should I become my child’s guardian? At some point before the child turns 18, a guardian should be appointed so that there is no period of time where the child is left unprotected. There is no minimum or maximum age for a petition for guardianship to be filed with the County Surrogate’s Court.
By Saundra M. Gumerove, Esq., an attorney in Jericho, New York