Guardianship
All of us, whether disabled or not, reach the age of majority at 18. This means that under the eyes of the law, we are able to make decisions independent of our parents. However, this becomes somewhat complicated when we talk about some individuals who are mentally retarded/developmentally disabled who may not be able to decide matters for themselves.
In order to accommodate the fact that a number of adults who are mentally retarded/developmentally disabled would not be able to make decisions for them selves, Article 17A of the Surrogate Court Procedure Act was enacted in 1969 and amended twice in subsequent years. In essence, it permits parents or any other concerned party to petition the Surrogate Court to be appointed guardian of the adult who is mentally retarded/developmentally disabled. By being appointed guardians, parents can legally continue their authority beyond age 18.
The process for being appointed guardian is a legal and formal one which traditionally had been initiated by an attorney. However, the law does allow for a person to petition the court on their own behalf (pro se). But before discussing the procedure for filing a "pro se" petition, let us review the types of guardianship and some issues regarding its appropriateness.
There are basically three types of guardianship: person, property and limited property. Guardianship of the person allows the guardian to be the decision-maker for the person who is mentally retarded/ developmentally disabled. Guardianship of property allows the guardian to control the assets of this individual. In order to protect the rights of this person, the assets are held jointly with the Surrogate, and the guardian must have the Surrogate's permission before any resources are withdrawn from the bank account. Limited guardianship of property enables the person who is mentally retarded/developmentally disabled to retain $300.00 per month in assets and any excess over that amount is controlled by the limited guardian and the Surrogate.
In becoming the guardian of the person, the individual takes on the decision- making ability for the person who is mentally retarded/developmentally disabled, especially as it relates to elective medical surgery. However, many physicians may accept the signature of the parent for surgery even if he/she is not the guardian; this is totally at the discretion of that physician. Issues of medical consent have become somewhat more complicated because of the problems associated with malpractice claims. Some health care facilities are now allowing only legal guardians to sign for medical consent. Furthermore, the law has been amended to explicitly provide a guardian of a person with mental retardation or developmental disabilities with the authority to make health care decisions for such persons including decisions regarding life-sustaining treatment under certain circumstances.
If the person who is mentally retarded/developmentally disabled lives in a facility licensed by the NYS Office for People with Developmental Disabilities (OPWDD), the Mental Hygiene Law will allow the parent to consent to all matters on behalf of the person who is not capable of doing so; even if they have not been appointed legal guardians.
The last aspect of guardianship, which is the one most appealing to parents, and which probably was one of the motivating factors in changing the law, is the appointment of a standby guardian. The petitioners for guardianship can name a standby guardian and an alternate standby guardian. These individuals will assume responsibility after the death of the preceding guardian. For example, both parents apply to be guardians and name a brother and sister as standby and alternate standby guardians respectively. After the death of the last remaining parent, the standby guardian assumes responsibility and if the standby guardian dies, the alternate standby would step forward.
The naming of such alternate guardians allows the parents the "peace of mind" that there will always be someone to "look after" their son or daughter for the rest of that person's natural life: this allows for a "continuance of advocacy", that is, knowledge that someone will always advocate for the best interests of the person who is mentally retarded/developmentally disabled.
We must advise that this idea of advocacy is somewhat vague. There is no listing of responsibilities of a 17-A guardian other than the now explicit medical decision-making authority (end of life decisions) for guardians of persons with mental retardation or developmental disabilities. Although not specifically enumerated in statute, a guardian stands as the representative of the person who is mentally retarded/developmentally disabled for decision-making in all aspects of life. We do know that the guardian is not financially responsible except in the instances of the guardian of property dispersing the assets of the person who is not able to do so for him/herself. We also know that the guardian need not provide shelter to the person who is mentally retarded/developmentally disabled although they certainly may do so if they wish.
In summary, anyone may apply to be the guardian of an adult who is mentally retarded/developmentally disabled. In some instances, even private agencies may be appointed guardian of a person if permitted to do so in their articles of incorporation.