Families Legal Guardian

How Does A Family Member Become a Legal Guardian?

When a child with a disability reaches the age of 18, they are legally considered to be an adult who can manage his/her own affairs. Parents or relatives who feel their child may not be able to manage their own affairs may consider applying to the Surrogate Court to become legal guardian. A legal guardian is responsible to ensure the individual’s rights, interests, and desires are protected. A guardian’s powers are similar to that of a parent over a child; however they do NOT assume any personal financial liability. A legal guardian will be able to make decisions on medical treatment, where a person will live, and what kind of care they will receive. A guardian is expected to know and understand the individual’s wishes and desires and advocate for the individual, but not to limit them in achieving their fullest potential.

Becoming a guardian is a serious responsibility. If your loved one has the capability to make decisions and manage finances with some assistance, allowing that person to function at his/her full capacity is a way of helping your loved one to grow. If, however, ability is limited and safety will be a continual issue, guardianship is a means of providing ongoing guidance and support.

You cannot establish guardianship in a will. Guardianship can only be established through a court proceeding. You can apply to become legal guardian on your own, but most parents or relatives will hire an attorney to help them. When applying for guardianship, you may want to consider naming standby or alternate standby guardians to step up when you are no longer available or capable of being guardian. A court must approve the change to standby guardian: it does not happen automatically.

You can obtain guardianship over the person and/or property under either Article 17-A of the Surrogates Court Procedure Act or Article 81 of the NYS Mental Hygiene Law. Most individual’s choose guardianship over the person under Article 17-A because it is quicker and less expensive. Article 81 guardianship is unique to each individual and provides “tailored” or “limited” guardianship over the person and/or their property based in the individual’s specific functional abilities.

The forms to apply to become legal guardian can be obtained from the New York State Unified Court System – Surrogates Court Forms located at http://www.nycourts.gov/forms/surrogates/guardianship.shtml.

Additional Resources:

NYS Commission on Quality Care and Advocacy for People with Disabilities
http://www.cqc.state.ny.us/advocacy/guardianshipforms/guardintro.htm

NYS Association of Community and Residential Agencies (NYSACRA) web site
http://www.nysarc.org/family/nysarc-family-guardianships.asp

National Guardianship Organization
http://www.guardianship.org/

UCP National web site
http://www.ucp.org/ucp_channeldoc.cfm/1/11/54/54-54/3041

AHRC Nassau
http://www.ahrc.org/guardianship.0.html