Guardianship proceedings in the Surrogate’s Courts in New York State are regulated by Article 17A of the New York Surrogate’s Court Procedure Act. Pursuant to guardianships brought under Article 17A, parents who have a child who is either developmentally or intellectually disabled can maintain decision making authority for the child after the child is 18 years of age. The court takes into consideration in an Article 17A guardianship proceeding, whether the appointment of the guardian would be in the adult child’s best interest. Courts evaluate each case individually, taking into consideration what would be in the alleged incompetent’s best interest. Courts take into consideration the emotional needs of the incapacitated individual, physical needs, intellectual needs, and the limitations the individual has related to his or her disability.
Presumption of Appointing Parents
There is an initial presumption appointing the parents as guardians of their disabled child is usually in the child’s best interests. This is especially true if the child has resided with the parents since birth and the parents have taken care of the child and helped meet the child’s needs. Courts will generally only appoint a member of the family circle as the guardian of a disabled individual. Only in the event there is no family member available will the court generally look outside of the family to appoint a guardian under Article 17A.
Contested Guardianships
Although it is unusual, guardianships can be contested. If the two parents don’t get along, don’t see eye to eye, or one parent feels the other parent would be an improper guardian, litigation can ensue before the Surrogate’s Court to determine which of the parents would be the superior parent to act as guardian. In contested guardianship proceedings, it is usually in the disabled child’s best interest the parents work out an amicable settlement instead of litigating the matter.
Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.
