As a loving parent, you want your child to be well cared for at all times. Though we don’t like to dwell on it, that means asking yourself some tough questions. What if you and your partner pass away or become incapacitated while your child still a minor? Or if your child has special needs or a mental illness, and can’t manage his affairs even as an adult? That’s why appointing a legal guardian is so crucial: It ensures that a child is in good hands for as long as he needs supervision, whether that’s temporarily or indefinitely.
Guardianship falls into three categories in New York state: guardianship of a child who may lose both parents, guardianship of a child with special needs after he turns 18, and guardianship of an incapacitated adult. Here’s what you need to know about each type.
Minor Considerations
Ideally, as soon as a couple learns they’re pregnant, they should see an attorney. She can help them draft a will that specifies how their assets will be distributed in the event of their death, as well as who will be the guardian of their child until his 18th birthday. If you didn’t already take this step it’s not too late, but it’s still a good idea to do this as soon as possible.
Jules Haas, an attorney who specializes in estate planning, says parents usually nominate a close relative to be their child’s guardian. It could be an aunt, uncle, grandparent, or other relation—someone who would have the child’s best interests in mind. If you have few relatives, or aren’t close with them, you might ask a good friend to assume the guardianship role instead. “There’s a lot that needs to be considered through your will,” Haas says. “The most important thing is that it’s better to figure it out and put something in writing than leave it up to the laws of the state of New York.” If you leave no directions, the state will pick a guardian for your child—and it may not be the person you would have preferred.
Once both parents are deceased, the nominated guardian needs to fill out an application to Surrogate’s Court. After it is approved, the individual becomes the legal guardian of the minor child. This process can take a few months, as the court reviews the documents.
In certain scenarios, complications can arise—say, if your nominated guardian has a prior conviction that may disqualify her from court approval, or if family members fight for custody. Fortunately, problems like these are uncommon.
Special Needs, Special Arrangements
Some children with special needs require guardianship even into adulthood. Happily, there’s a way to make sure they’re still properly cared for once they reach age 18, and beyond. Parents can apply in Surrogate’s Court for something called an Article 17-A guardianship, which allows them to continue to make financial and health care decisions for their adult child.
The process involves presenting medical certifications from either two doctors or a doctor and a psychologist, proving that the individual has a developmental disability. Next, the paperwork is filed with the court. More often than not, the application is approved and the child’s biological parents are awarded guardianship.
Andrew Cohen, Esq., an attorney with offices on Long Island and in Manhattan who specializes in estate planning, special needs law, and guardianship, says parents can file for guardianship under Article 17-A themselves, though they can hire legal representation if they prefer. Either way, it’s a step that shouldn’t be overlooked. “Parents who have a child on the autism spectrum automatically presume, because their child is nonverbal or really cannot advocate for himself, that they would be able to continue to make decisions [for their child] into adulthood,” Cohen says. “But the reality is they’re not granted that automatic authority.”
Article 17-A Guardianship can become complicated if parents have separated or divorced. In this instance, they must decide if they will both become legal guardians, or if one parent will be the primary guardian and the other a secondary decider. “These are things that all have to be taken into consideration when parents have the best interest in their child in their hearts, but don’t necessarily see eye-to-eye on their child’s care,” Cohen says.
Of course, parents themselves may not be able to oversee their adult child’s care for his entire lifetime. If there are no relatives or friends who can succeed them in the role, parents may appoint a nonprofit organization to be their child’s guardian. The arrangement, called a corporate guardianship, would be specified in the parents’ will and would have to be approved by a court guardianship proceeding.
Appointing a Guardian for an Adult
A final type of guardianship, Article 81 guardianship, applies to an incapacitated adult who needs help taking care of personal and/or financial needs under the Mental Hygiene Law. To qualify as incapacitated, the person’s cognitive function must inhibit him from making sound decisions. While in elderly people this may be due to dementia and Alzheimer’s disease, in younger people the cause may be other mental illnesses, substance or alcohol abuse, or certain mediations. If your child turns 18 and she has a mental illness, you can apply to be her guardian to help make decisions on her behalf. This type of guardianship needs to be applied for in Supreme Court.
Article 81 guardianship can be fairly expensive and time-consuming to attain, but it’s worth it, says Cohen. “The guardian would be appointed with certain powers vested by the court that will properly protect that person from doing harm to themselves or others,” Cohen says.
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