Guardianship 17A vs. 81

taken from: http://www.chernackelderlaw.com/?page_id=6

In an effort to explore different areas of family law, I registered for a Project Based Learning course at New York Law School titled The Guardianship Project. This course allows students to represent plaintiffs in Surrogate’s Court Article 17A Guardianship proceedings. Article 17A Guardianship allow the plaintiff, usually a close relative, to be appointed guardian over their “developmentally disabled or mentally retarded” family member who is over eighteen years of age. I use that terminology because that is the terminology used in the statutes and petition documents. The class of persons who can petition for Article 17A guardianship is quite narrow.

Article 17A is used to extend complete control and healthcare decision making after the disabled has turned the age of majority, eighteen. 17-A does not provide gradations to control.  It doesn’t require tailoring of control by the courts, and it does not have the same reporting requirements as Article 81 guardianship, unless the court specifically requires it. 17A guardianship differs from Article 81 Guardianship in that it is more time and cost efficient. Petitioners in Article 17a proceedings are often pro se because of the simplified forms and service requirements. This is an extremely important factor for petitioners when legal expenses are daunting, if not prohibitive.

Mental Health Law Article 81 Guardianship provides for the appointment of guardians for “persons with functional incapacities to make available to them the least restrictive form of intervention which assists them in meeting their needs . . . [and which] permits them to exercise the independence and self-determination of which they are capable” (Mental Hygiene Law § 81.01). It is flexible in that it allows guardianship over any incapacitated individual, yet guardians have less authority under Article 17A. Once appointed under Article 81, guardians only have control over what is absolutely necessary for the incapacitated individual’s needs, and must submit annual reports to the court about the incapacitated family member’s living situation. Article 81 is aimed at preserving the incapacitated’s autonomy to the fullest degree possible.

Article 81 requires a more advanced determination involving functional incapacity and danger, while 17-A is diagnosis driven. A hearing must be held for an Article 81 appointment, while no hearing is required under 17-A. Article 81 requires the appointment of a court evaluator to examine and make recommendations, while Article 17A has no such requirement

Courts use caution in 17A proceedings. When it is likely that the individual’s inability to “manage him or herself and/or his or her affairs” does not necessarily stem from  “mental retardation or developmental disability”, many courts believe an appointment under 17A may not be in the “best interest” of the subject. Courts constitutionally believe everyone, if capable, should maintain decision making and control of themselves. They do not like abusing the power of 17A guardians. (See In Re: the Proceeding for the Appointment of a Guardian for Chaim A.K.)

That being said, isn’t it important that there are less costly methods for individuals seeking guardianship over the incapacitated or developmentally disabled that don’t fall under the 17A category? Plaintiff’s spend between eight-thousand and fifteen thousand dollars for Artilce 81 guardianship; this is not an easy feat. What the pro’s and con’s of having a more accessible court to appoint guardianship over the incapacitated? Perhaps it is best to have a more accessible court that allows more individuals to be appointed as guardians, but also maintain a more accessible system of overturning or setting aside that appointment if contested. I will get back to you on a more definitive opinion as my studies of guardianship’s continue…