Guardianship: Protecting Seniors & Adults With Disabilities

When a client contacts our office and mentions needing a guardianship for a loved one, two numbers begin to swirl in my head: 81 and 17A. One of those numbers portends a long, complex legal proceeding; the other signifies a straightforward and usually uncontentious case.

Think about it this way … You are in Chicago. Your friend mentions that both of you will be having pizza for dinner. Images of deep dish and tavern-style swirl in your head. Which one did your friend choose?

Deep dish requires utensils, patience, effort, and an iron stomach to handle the voluminous layers of cheese, sauce, and crust filling the pan. Tavern-style only tasks you with the ability to lift a thin square of cut pizza and pop it in your mouth.

Getting back to those numbers… Article 81 and Article 17A guardianships serve similar purposes for different incapacitated populations. Article 17 A guardianships deal with individuals with developmental disabilities who have reached adulthood, but still require the same overall guidance they have received since early childhood.

Article 17 A cases are brought in Surrogate’s Court, usually by one or both parents, to obtain decision-making power over their child’s healthcare and finances. Without a 17A guardianship, parents in this situation would not be able to handle their child’s affairs, because the law deems them to be adults with full decision-making capabilities based solely on their age.

Surrogate’s Court staff understand the importance and sensitivity of these types of proceedings and are usually accommodating and helpful.

Even though there are similar intentions, Article 81 guardianships exist in a different universe as compared to Article 17A cases. Article 81s are brought to exert financial and health care control over an individual who has lost capacity.

New York law institutes safeguards that protect a person from being unfairly targeted for guardianship. The “alleged incapacitated person,” or AIP, is assigned their own attorney, independent of a family or nursing home attorney. A court evaluator is also appointed to provide investigative due diligence. Proposed guardians may seek guardianship of the AIP’s person, property, or both. “Person” refers to their non-financial needs and wants, while “property” includes the AIP’s finances.

Unlike 17 As, many Article 81 guardianships are contentious with family members vying for control over a parent or sibling. Failing to execute a properly drafted Power of Attorney and Health Care Proxy for a loved one often leads a family to seek an Article 81 guardianship.

Article 81s are brought in a county’s Supreme Court and follow more traditional litigation rules and paperwork. Cases take longer. While both 17As and 81s have annual reporting requirements and banking oversight, 81s are often paired with long-term Medicaid planning with the court’s approval to preserve the AIP’s assets.

The 17A guardianships are excellent opportunities to set up a Supplemental Needs Trust for the young adult who will need substantial care through the government, while also allowing their trustee to pay for goods and services to maintain eligibility.

Nursing homes dissatisfied with a Medicaid decision or private pay balances will bring Article 81 guardianship proceedings to secure access to the AIP’s assets. While it serves a business interest for the nursing home, removing legal control of a loved one from their family can be jarring and unsettling.

There are times when a guardianship is the only option to ensure the safety and security of a loved one. Making that decision with an experienced attorney is a good idea. That same experienced attorney can also advise your Chicago friend on the best pizza options – mainly, just move to New York.

Alan D. Feller, Esq., is managing partner of The Feller Group, located at 572 Route 6, Suite 103, Mahopac. He can be reached at alandfeller@thefellergroup.com.