When a child who is disabled or has special needs reaches the age of 18, it is determined under the law that they are able to make decisions for themselves because of their age. While this may be true for some adults with disabilities, it is not the case for others. Some adult children require a guardian to make certain decisions for them as their disability makes it difficult or impossible for them to do so on their own. In New York, a person with a disability or special needs, with regards to the appointment of a guardian, is someone who has been determined to have an intellectual or developmental disability. This must be certified by one licensed physician and one licensed psychologist, or two licensed physicians. An individual must be unable to manage themselves and/or their affairs by reason of intellectual disability or a developmental disability attributed to cerebral palsy, epilepsy, neurological impairment, autism, traumatic head injury, or other conditions that result in similar impairments.
A guardianship is essentially a legally authorized appointment for a person to manage the affairs of another person who is unable to do so because of an intellectual or developmental disability. In New York, anyone who is over the age of 18 and a citizen or legal resident of the United States may apply to become a guardian. It should be noted that individuals seeking to be appointed as a guardian may not have criminal records. In a majority of cases, guardians are usually the parents of the child who is disabled or has special needs. However, there are certain situations where a non-parent is designated as the child’s guardian.
In the state of New York, parents or other persons wishing to be appointed as the guardian of a child with developmental or intellectual disabilities must file an Article 17-A petition with the Surrogate’s Court. The petition must include certification from one physician and one psychologist, or two physicians, that attests to the fact that the individual has a disability and is not able to manage themselves or their affairs and that nature of their disability is intellectual, developmental, or the result of a traumatic head injury. Following the approval of the formal petition and certifications by the Surrogate’s Court, a Court appearance takes place in which the guardian is legally appointed.
There are three types of guardianship: guardian of the person, guardian of the property, or guardian of the person and property. Each type of guardianship has a distinct authority over certain aspects of a disabled child’s life. Guardianship of the person allows for the appointed guardian to make decisions with regards to the child’s health, education, and overall wellbeing. This type of guardianship is created in situations where the child does not possess any income or assets. Guardian of the property involves making financial decisions for a child such as asset management or cash disbursement. Under this type of guardianship, the designated guardian must file an annual report with the court, accounting for all financial transactions made on behalf of the child. Guardian of the person and property covers the first two types of guardianships and makes the guardian legally responsible for both the child’s health and financial affairs. The same person can be the guardian of the person and property, or the Court can be asked to appoint a different guardian for each area.
In the state of New York, there are two different statutes that govern two different kinds of guardianships. Article 17A Guardianship is aimed at governing guardianships for individuals with intellectual or developmental disabilities that have been present since birth or before the individual turned 18 years of age. Article 81 Guardianship is a statute that governs guardianship procedures for individuals who were able to manage themselves and their affairs but have since become incapacitated.