NYSARC

Guardianship Frequently Asked Questions

Who is eligible for guardianship? | What’s the advantage of guardianship to the guardianee? | What is guardianship? | What are the types of guardianship? | What is an Article 17-A Guardianship? | Who are guardians? |  Are there alternatives to guardianship?

Q: Who is eligible for guardianship and what does "ward" mean?

A: The term "ward" defines those who are eligible for guardianship. "Wards" are typically people over the age of 18 who do not possess the cognitive, communicative or educational capacity to make autonomous decisions or to provide informed consent for personal, medical and/or financial affairs. For the purposes of this FAQ, we will use "guardianee" in place of "ward."

Q: What’s the advantage of guardianship to the guardianee?

A: A guardian has the responsibility to make decisions that protect the individual’s basic human rights, entitlements and benefits, and that incorporate the guardianee’s values and preferences.

Q: What is guardianship?

A: In New York, parents of persons with intellectual or other developmental disabilities are considered the natural guardians of their children until their 18th birthday. After that, people are assumed to be a legally competent adult and able to manage their own affairs.

Guardianship creates an advocate with the legal authority to make certain decisions on behalf of the guardianee, specifically to manage legal, personal and financial affairs. Legal guardianship cannot be granted from, or specified in, a will.

Q: What are the types of guardianship?

A: The Guardian of the Person is appointed by the court to manage the personal affairs of the individual with intellectual or developmental disabilities, and to protect that person. The Guardian of the Property, under court supervision, controls the financial resources and property matters of the guardianee. The specific powers are limited to acting only in property matters and investments or in disposing of income or other assets. The Guardian of the Property is typically required to provide an accounting to the court every year.

The Standby/Alternate Standby Guardian are appointed to serve upon the death, incapacity or renunciation of the primary guardian, subject to court confirmation within 60 days of the loss of the primary guardian.

Q: What is an Article 17-A Guardianship?

A: An Article 17-A Guardianship is a Surrogate Court proceeding that designates a guardian to act on behalf of an individual with intellectual or developmental disabilities after that person has turned 18.

The court must be satisfied that the guardianship is necessary and in the best interest of the person. Certifications are required from one licensed physician and one licensed psychologist -- or two licensed physicians, one of whom has experience working with individuals with developmental disabilities.

Q: Who are guardians?

A: Primarily, guardians are relatives or friends, but under Article 17-A, a not-for-profit organization can also be a guardian, such as NYSARC, Inc.

Q: Are there alternatives to guardianship?

A: Some people who might otherwise need a guardian can be served in a less restrictive way, including:

• Advance medical directives or health-care proxies
• Personal caregivers
• Powers of attorney
• Representative payees
• Trusts