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New York & North Carolina

Guardianship of Adult Children with Disabilities


Adult Guardianship

When we talk about adult guardianship, we often think about elderly family members suffering from debilitating health issues such as Alzheimer’s and dementia. However, you may petition the court for guardianship of any individual over 18 who is “intellectually disabled or developmentally disabled” and has difficulty with decision-making. This of course would include special needs children who are over the age of 18.

What are SCPA Article 17-A Guardianship Proceedings?

SCPA Article 17-A guardianship proceedings are for individuals who are intellectually and/or developmentally disabled. Generally, the guardian appointed will be the individual’s parents, however, in certain cases, a non-parent may be appointed as guardian.

What is Guardianship?

Guardianship refers to the legal process of a court-appointed relationship between a capable adult and a person over the age of eighteen who has a disability preventing them from being able to make informed decisions or is unable to manage their own affairs without risk to themselves or others.

What is A Guardian?

A guardian is defined as a person who has been entrusted by the Surrogate Court with the care of another person, for the person’s property, or for the care of both person and property.

Who Can Be A Guardian?

Friends, family members, neighbors, or professionals trained in guardianship functions may act as a guardian. The guardian, by law:

  • Must be over eighteen.
  • Must not have ever been convicted of a felony.
  • Must not be a professional providing services to the incapacitated adult.
  • Must not be in debt to the incapacitated adult.

How Do You File for SCPA Article 17-A Guardianship?

Generally, parents need to petition the court for guardianship of their child, however, it is important to note that anyone who is interested, and over 18, may petition on behalf of the individual with an intellectual and/or developmental disability. A medical certification must accompany the petition certifying that the person has a disability and is not able to manage their affairs due to intellectual disability or developmental disability.  The court will then conduct a hearing before guardianship is granted.

What Is the Process of Guardianship for Adult Children with Disabilities Like?

Courts generally seek to place individuals in the least restrictive environment necessary. Guardianship of an adult child with a disability can be a lengthy process and requires a medical professional to deem that individual “incapacitated”. The court gives the guardian the ability to make decisions on behalf of the incapacitated adult. Guardianship orders are unique in each situation. The powers granted to the guardian are those that are specifically necessary to meet the needs of the incapacitated person. The power given to the guardian may be limited by the court depending on the mental capacity of the person involved.  There are two types of guardianships, guardianship of the person and guardianship of the property.

If Granted Guardianship of My Adult Child, Can I Will that Guardianship to Someone Else Upon My Death?

No. If you die while the guardianship is still in place, another adult will need to petition the court to become guardian.

What is Guardianship of the Person?

This type of guardianship gives the guardian the ability to make decisions in areas pertaining to ensuring the safety and well-being of the incapacitated adult. These areas could include decisions regarding housing, education, the standard of living, consent/refusal of medical treatments, and travel decisions.

What is Guardianship of Property?

This type of guardianship gives the guardian the ability to make decisions in areas pertaining to the management of the incapacitated adult’s financial affairs.

What are Some of the Responsibilities of a Guardian?

An appointed guardian may be responsible for any of the following duties:

  • Make informed medical decisions regarding doctors, treatments, and hospitalizations.
  • Keep accurate financial records of income and expenses.
  • File regular reports with the court and visit the incapacitated person at least 4 times per year.

Is There an Alternative to Guardianship?

  • A power of attorney can be granted for a certain amount of time and for an explicit purpose, or for much broader purposes such as managing the financial affairs on behalf of another person and would remain in effect even when the individual is no longer able to make decisions due to health or mental capacity.
  • If an individual has a condition that requires lifelong treatment or support and may need government assistance, a supplemental needs trust can be created. A Supplemental Needs Trust is a trust which supplements government benefits such as Medicaid rather than diminishing such benefits.