The Different Types of Guardianship in New York

A Primer for Understanding the Options

I have had a lot of questions lately from clients about guardianships in New York.  The different types available under New York law can be confusing, and I thought a basic primer would be useful to detail their differences.

What types of guardianship are available?

There are three types of guardianship available in New York:  an Article 81 guardianship under the Mental Hygiene Law (MHL), an Article 17 guardianship under the Surrogate’s Court Procedure Act (SCPA), and an Article 17A guardianship under the SCPA.

What is an Article 81 guardianship?

An Article 81 guardianship is available if an individual can no longer handle their financial and/or personal affairs and does not understand and appreciate those inabilities.  This leads to a finding by the court that the person is incapacitated. The court must also find that the guardianship is necessary to provide for the individual’s financial and/or personal affairs.

Does the court have to find incapacity?

No.  The court can also establish an Article 81 guardianship if it finds that it is necessary to provide for the individual’s financial and/or personal affairs and the individual consents to the guardianship.

What type of powers are granted?

The court will determine whether the individual needs help with their financial and/or personal affairs, and it will grant powers to the guardian to deal with the individual’s particular needs.  The powers can be quite broad or more targeted, depending on the particular case.

What is a typical case?

A typical Article 81 guardianship involves an older person who is suffering from some type of dementia, which prevents them from being able to competently handle their affairs.

How is the guardianship established?

The guardianship is established by bringing a proceeding in County Court or Supreme Court.  These proceedings are typically brought by a close family member, such as a spouse or child, who is seeking to assist their loved one.

What is an Article 17 guardianship?

An Article 17 guardianship may be granted by a court for an individual who is under the age of 18.  These types of guardianships can relate to the child’s personal and/or financial affairs.

When are Article 17 guardianships granted?

Typically, if the child’s parents are still living and the child is receiving assets, the parents can seek to be appointed as the guardians of the property of the child, until they reach 18.  For example, this can happen in the event the child receives a bequest from a relative in their Last Will and Testament.

When else would it be granted?

An Article 17 guardianship may also be granted if the parents of the child are deceased.  In that case, the prospective guardian would likely be appointed to handle the financial and personal affairs of the child.  Typically, the guardian would be a close family member or friend of the deceased parents.

Should a parent provide for a guardianship?

If you have a minor child, it would be wise to state in your Last Will and Testament who you wish to be appointed as the guardian of your child, in the event you die, and they are still a minor.  The individual you choose will need to be appointed by the court before they can act in that capacity.

How is the guardianship established?

Article 17 guardianships are typically established by the Surrogate’s Court in the county where the child is domiciled.  That is also the case with regard to Article 17A guardianships.

What is an Article 17A guardianship?

An Article 17A guardianship may be granted by a court for an individual who is intellectually disabled or developmentally disabled.  Intellectual disabilities would include people who have a condition like Down Syndrome.  Developmental disabilities can include conditions such as cerebral palsy, epilepsy, neurological impairment, autism, or traumatic brain injury.

What type of powers are granted?

Similar to an Article 17 guardianship, the court may grant powers related to the personal and/or financial affairs of the individual.  All such powers must be utilized with the utmost care, diligence, trust, loyalty, and fidelity.

What is a typical case?

A typical case would involve parents who are seeking to be appointed as guardians for their intellectually disabled child.  Parents generally seek to be appointed before the child reaches the age of 18 and becomes a legal adult in New York.

Are there reporting requirements?

In all types of guardianships, Article 81, Article 17, and Article 17A, the guardians must file annual reports.  Article 81 guardians file a report with a court appointed examiner of reports.  Article 17 and Article 17A guardians file a report with the Surrogate’s Court which appointed them.

Are there alternatives to guardianship?

If a person becomes incapacitated later in life, an Article 81 guardianship may not be necessary if they previously executed a Power of Attorney and Health Care Proxy as part of their estate planning.  Their designated agents can handle their financial and medical affairs by virtue of those documents.

There is also growing interest in supported decision-making as an alternative to Article 17A guardianship.  The New York supported decision-making statute was passed in 2022 and can be found in Article 82 of the Mental Hygiene Law.  The first State-Wide Supported Decision-Making Forum was actually held just last month in Saratoga Springs.  More information on supported decision making can be found at: https://sdmny.org/

Navigating guardianship law on behalf of a loved one can be challenging.  Court proceedings are involved, and procedures vary depending on the type of guardianship you are seeking.  It is advisable to seek the help of an attorney experienced in guardianship law to ensure your case is handled with the care and diligence it deserves.

Matthew J. Dorsey, Esq. is a Shareholder with O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY. Over his twenty-eight years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at (518)584-5205, mdorsey@oalaw.com and www.oalaw.com.