Guardianship in New York: Understanding the Different Types

In New York State, there are two separate types of guardianships – Mental Hygiene Law Article 17A guardianships and Mental Hygiene Law Article 81 guardianships. While the concept of guardianship may seem straightforward, it is important to understand the differences between the two types.

Mental Hygiene Law Article 17A Guardianships: What You Need to Know

In New York State, an individual is classified as an adult upon turning 18 years of age, and are therefore legally able to make decisions for themselves rather than having a parent or guardian do so. However, in some cases, despite an individual turning 18 years old, that person may not be fit to make decisions on his or her own.

If the individual in question is intellectually or developmentally disabled, they are often not capable of making decisions on their own. This is where New York State’s guardianship laws come into play; one of these laws being Article 17A guardianships.

An Article 17A guardianship is a type of guardianship granted by a surrogate judge that is designed to protect the best interests of an intellectually or developmentally disabled individual by appointing a legal guardian for them.

In most cases, an Article 17A guardianship will be granted when the individual in question has one of the following impairments:

  • Autism
  • Cerebral palsy
  • Epilepsy
  • A severe head injury resulting in disability
  • A neurological impairment

Article 17A guardianships are the most restrictive type of guardianship under New York State law. The petitioner that is pursuing the guardianship is often a parent or other close family member.

Mental Hygiene Law Article 81 Guardianships: What You Need to Know

In addition to Article 17A guardianships, New York State also has Article 81 guardianships. Unlike guardianships granted under Article 17A, Article 81 of New York State’s Mental Hygiene Law allows for a guardian to be appointed for an individual who cannot handle his or her own personal or financial matters due to incapacity, not necessarily one of the impairments described above.

Something important to note is that not all Article 81 guardianships are the same. The responsibilities of the guardian will ultimately depend on the type of incapacitation that the individual in question has. For example, the incapacitated individual may be able to make some personal and/or financial decisions on their own, and therefore the court will deem that the guardian must only be in charge of making some decisions for this person, not all.

There are instances in which the level of incapacitation is severe enough that the court will appoint a guardian under Article 81 law to handle all of a person’s matters, whether medical, financial or other.

How Are Guardians Appointed by the Court?

Becoming a legal guardian is a process that goes through the court system. The process begins with a petitioner requesting that the court appoint a guardian for an impaired and/or incapacitated individual who cannot handle their own affairs. The judge will then review the case and determine whether or not the Alleged Incapacitated Person (AIP) qualifies as someone who needs a legal guardian to handle their affairs.

Once it is deemed that the AIP does indeed require a guardian, the individual attempting to become an Article 81 guardian must complete the proper training to do so. Following the completion of this training, the person will legally be appointed as guardian of the incapacitated individual.

Who is Typically a Guardian?

Those appointed guardians are often trusted family members – but not in every case. In cases where there is no qualified family member to become guardian, the court can appoint a previously trained professional or social service agency to become the legal guardian.

If you are seeking to become legal guardian of an incapacitated or developmentally disabled individual, we are here to help. Contact us today to learn more about how we can assist with your case.

Image by Tumisu, from Pixabay

About the Author

Alyssa Marie Monteleon, Esq.

Alyssa Marie Monteleon is an elder law and estate planning attorney at the Monteleon Law Group, PLLC with offices in New York and Virginia. For more information, please visit or call (914) 840-2529.

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