SCPA 17A or MHL 81 Guardianship
Those seeking guardianship over disabled individuals in NYC often find themselves deciphering between SCPA 17A or MHL 81 guardianship. The type of guardianship that a petitioner commences in New York City can depend on the facts and circumstances of the case, the abilities and limitations of the person who needs the guardian, and whether or not the proposed guardian wants to choose specific powers.
What Laws Govern either SCPA17A or MHL 81 Guardianship?
The two most common types of guardianship in New York City are governed under different laws. Article 81 Guardianships are governed under Article 81 of New York’s Mental Hygiene Law, while Article 17-A Guardianships are governed under Article 17-A of New York’s Surrogate’s Court Procedure Act. (Article 17 Guardianships are also governed under the Surrogate’s Court Procedure Act, but it concerns the appointment of guardians for minors and are, therefore, not covered in this post.)
When to file either SCPA 17A or MHL 81 Guardianship?
Generally, guardianships are commenced when a person needs someone else to make decisions for them and manage their personal and/or financial affairs because they lack the capacity to do so themselves. With this in mind, there are many differences between SCPA 17A or MHL 81 guardianship.
Article 81 guardianships are often commenced on behalf of elderly individuals who suffer from age-related memory loss or illnesses that have diminished their ability to manage their affairs, such as Alzheimer’s Disease.
Article 17-A limits these guardianships to individuals who are intellectually or developmentally disabled. 17-A guardianships are often commenced where a guardian was appointed under Article 17 due to the incapacitated person’s disability but were terminated because the incapacitated person turned 18.
Where to Commence either SCPA 17A or MHL 81 Guardianship?
Article 81 Guardianships are commenced in Supreme Court, whereas Article 17-A Guardianships are commenced in Surrogate’s Court.
Powers of SCPA 17A or MHL 81 Guardians.
Petitioners in Article 17-A guardianship proceedings cannot choose which powers they want. Article 17-A guardians are broadly authorized to make all healthcare and financial decisions for the incapacitated person. Powers are not set forth in the statute.
Article 81 Guardianships, however, allow the Petitioner to choose which powers she wants and can pick as many or as few as she wants. An Article 81 Guardian can choose any number of powers, including, but not limited to the following:
A proposed guardian of the person can request powers such as:
- Power to make gifts
- Power to marshall assets
- Power to pay the incapacitated person’s bills
- Power to retain an accountant
- Power to maintain and defend a lawsuit on the incapacitated person’s behalf
A proposed guardian of the property can request powers such as:
- Power to determine who will provide personal care to the incapacitated person
- Power to make decisions regarding the incapacitated person’s education
- Power to decide whether the incapacitated person should travel
- Power to make decisions regarding the incapacitated person’s living arrangements
- Power to decide whether the incapacitated person should possess a license
Please note that for both types of guardianship, a guardian can be appointed for just the person, just the property, or both the person and property.
How can I Commence Either SCPA 17A or MHL 81 Guardianship?
Both proceedings are commenced by filing pleadings with the appropriate court. However, the complexity of those proceedings differs with each type of Guardianship.
Article 17-A guardianships are commenced by filing a Petition and Affidavit from the proposed guardian, along with the disabled person’s birth certificate and certification from two doctors certifying that the incapacitated person cannot take care of himself because of an intellectual disability, developmental disability, or traumatic head injury. The Petition provides information, including the name and contact information of the petitioner and the incapacitated person, type of disability, the names and addresses of the incapacitated person’s parents, spouse, if any, and children, if any, name and address of the primary care physician certifying the incapacitated person’s disability, details about the incapacitated person’s real property, personal property, and income, names and addresses of any standby guardians, and relief requested. Once the Petition is filed, the Court will issue a citation, which the petitioner must serve on all interested persons to give them notice of the proceeding.
Article 81 guardianships are commenced by filing a Petition, Order to Show Cause, and RJI with the Supreme Court. The Petition is a lot more intricate than a 17-A petition. The Petitioner should provide a thorough account of the Alleged Incapacitated Person’s illnesses, the Alleged Incapacitated Person’s needs, the Alleged Incapacitated Person’s abilities and limitations regarding her Activities of Daily Living, other issues that have arisen due to the Incapacitated Person’s cognitive limitations, the Alleged Incapaciated Person’s assets and income, the powers requested, the interested persons, and the qualifications of the proposed guardian. Activities of Daily Living include dressing, bathing, grooming, cooking or preparing meals, feeding, toileting, walking, and financial transactions.
The Order to Show Cause is the vehicle by which notice of the proceeding is given to the Alleged Incpacitated Person and other interested persons. It sets forth the Alleged Incapacitated Person’s rights, provides the date and time of the hearing, and appoints a Court Evaluator, who will investigate the AIP’s circumstances and provide recommendations to the Court.
What Happens Once either the SCPA 17A or MHL 81 Guardianship Proceeding is Commenced?
Once an Article 17-A guardianship matter is commenced, there is a short hearing. At the hearing, the petitioner and the disabled individual appear. The Petitioner explains why a guardian is needed. The judge, who has already reviewed the Petitioner’s pleadings, makes a determination regarding whether the intellectually disabled person needs a guardian and whether the proposed guardian qualifies to act as such guardian.
Article 81 guardianships are more complex, however. Once the judge signs the petitioner’s Order to Show Cause, the petitioner then has to serve it, along with the Petition and Notice of Proceedings, on all of the parties named in the petition, as well as the Court Evaluator and Counsel to AIP, if any was appointed in the Order to Show Cause.
Before the hearing, the Court Evaluator must investigate the AIP’s circumstances by meeting with the AIP, AIP’s Counsel (if any), the Petitioner’s Counsel, and Petitioner, speaking with any other interested persons, and gathering and reviewing the AIP’s financial and medical documentation. Once the Court Evaluator is finished with her investigation, she must render a report to the Court and provide information about the AIP’s capacity, the AIP’s living situation, and what personal and financial Activities of Daily Living the AIP is able or unable to perform. The Court Evaluator Report must also include recommendations on whether the AIP needs a guardian and the person(s) (or entity) that would be best suited to serve as the AIP’s guardian.
At the hearing, the Judge will likely speak with the AIP to gauge the AIP’s capacity. If the AIP can meaningfully participate, the AIP might testify. The parties will then call witnesses to examine. Witnesses will include the petitioner and sometimes also include medical professionals, social workers, aides, and possibly family members that are familiar with the AIP’s care and medical conditions.
The Court Evaluator will then testify as to her findings and recommendations. If any of the parties wish to examine the Court Evaluator, they can do so.
At the conclusion of the hearing, the judge usually makes a decision about the AIP’s capacity, whether a guardian is to be appointed, and who will serve as the guardian.
Then one of the parties, usually the petitioner or the petitioner’s attorney, must prepare a proposed Order and Judgment, serve it on all interested persons named in the Order to Show Cause, and submit it to the Court for signature. The judge will sign the Order and Judgment, usually after editing it first.
Duties of Either SCPA 17A or MHL 81 Guardians
The guardians of either a SCPA 17A or MHL 81 guardianship have a number of duties and responsibilities. Article 81 Guardians must comply with several duties and requirements. Generally, a guardian must take a training course and complete an affidavit of viewing, in which she attests to having viewed the guardian training. The guardian must also complete a Designation of Clerk and Consent to Act in which she designates the clerk to accept service on her behalf if needed and agrees to faithfully carry out her duties. The guardian also usually prepares the commission, which is then signed by the clerk of the court. The commission to the guardian is the document that the guardian presents to different entities, along with the signed Order and Judgment, to show that the guardian has authority to act.
The guardian must then complete an initial report 90 days after she is appointed. In the initial report, the guardian will provide information regarding the date of the appointment and the court and judge that appointed the guardian, information about any bond that the guardian is required to obtain, information about whether the guardian fulfilled the training requirements, dates and locations of any visits that the guardian made to the Incapacitated Person, information about the Incapacitated Person’s personal care and recent doctor’s visits, and information about the Incapacitated Person’s financial resources.
Over the course of the guardianship, the guardian must also prepare annual accountings and file them in Court. The Court Examiner, who would have been appointed in the Order and Judgment, is required to review the accountings and either approve the accountings or deny them and seek more information and modification thereof.
Upon the Incapacitated Person’s death (or other terminating event), the guardian must file papers giving notice of the Incapacitated Person’s death, render a final accounting, and seek discharge as guardian.
Article 17-A guardianships, however, do not have reporting requirements.
We can help you decipher whether whether either SCPA 17A or MHL 81 guardianship is right for your and your family.
Additional resources provided by the author
For more information, please contact guardianship, probate and estate planning attorney Regina Kiperman:
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