Guardianship Basics: What Is It and When Is It Used?

May 2, 2023
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When adults lose the ability to make critical decisions about their health and assets, and a durable modified power of attorney does not exist, guardianship is an excellent form of support. Guardianship is a legal process involving a court-appointed individual whose role is to support someone in making decisions about their assets, health care, medical treatments, and more.

There are two types of guardianship, each serving a different purpose: Article 17-A and Article 81.

Article 17-A Guardianship is filed under the Surrogate’s Court Procedure Act, where an individual (18 years or older) can be appointed as a guardian of an adult who is deemed developmentally or intellectually disabled. Disabilities covered by this type of guardianship include epilepsy, cerebral palsy, autism, traumatic head injuries, and neurological impairments.

Article 81 Guardianship is filed under Mental Hygiene Law. This form supports incapacitated adults, which covers aging seniors losing the ability to make sound decisions about their well-being and assets.

How Are Guardianships Filed?

A Guardian of the Person and Property can appointed when a Petition and Order to Show Cause is filed in court that illustrates a need for this support. If the judge determines a guardian is needed, the ultimate terms surrounding the guardianship will be outlined in the order.

What Does a Guardianship Cover?

A court-ordered guardianship hearing will determine if a guardian should be appointed and why. The court order may include living arrangements, medical decisions, financial decisions, etc. A guardian only has the power to act on what is detailed in the order and is required to account for all of their actions each year.

Learn More About Guardianship

Guardianship can be a complicated and overwhelming process to manage. Brian Andrew Tully, Esq. will be moderating our monthly Senior Advocacy Forum on Guardianship on May 10, 2023 @ 1 PM. The panelists will be Robert Heppenheimer, MPA, CCM, and Partner Joanne M. Hawthorne, Esq.

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