An Article 17-A Guardianship is available only for individuals who are “intellectually disabled or developmentally disabled.” These are the legal terms used in Article 17-A of the Surrogate’s Court Procedures Act.
A certification from one physician and one psychologist or two physicians must be filed with the petition certifying that the person has a disability and is not able to manage his or her affairs because of intellectual disability, developmental disability or a traumatic head injury. The Surrogate’s Court can appoint a guardian of the person, the property or both.
An Article 17-A Guardianship is very broad and covers most decisions that are usually made by a parent for a child such as financial and healthcare decisions. To start your case, use the free and easy DIY Forms program to make your petition or you can contact the Surrogate’s Court for an Article 17A Guardianship Packet.
Alternatives to full guardianship are also available to be considered and explored with an attorney familiar with special needs law.
If the person with special needs has sufficient capacity to understand, he can appoint an agent using a durable power of attorney (POA) over medical or financial matters, or both. Depending on the type of power of attorney, the agent will have the authority to make financial and property decisions or medical and personal decisions on behalf of the adult child, all without court intervention or direct oversight.
If the adult child receives either Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) and cannot manage the income, the Social Security Administration allows another person – a “representative payee” — to receive the funds to use on the child’s behalf. However this option also requires the filing of an annual report showing how the money was used.
Another option for parents to consider is establishing a special needs trust. The trust allows a person with special needs to shield assets for certain purposes while maintaining eligibility to receive SSI and Medicaid benefits. The trustee invests and manages the trust assets, usually avoiding the need for a financial guardian or conservator.
Parents should consider, in consultation with an attorney familiar with special needs law, whether any or a combination of these approaches best fits their particular situation. Factors to consider include the nature of the child’s special needs, the source and type of the child’s assets and whether the child has sufficient capacity to understand his or her choices. (read more…)