There are unique challenges and opportunities for families with special needs children. Providing appropriate medical, educational,…
There are two parts to a guardianship in New York. Someone can be a guardian of a person, or a guardian of property. Usually, the Court appoints both guardians, and quite often it is one and the same person.
Adult guardianship over property is the legal action in which a guardian is appointed who will make personal decisions on behalf of their loved one with special needs (like a child or a parent). The arrangements include issues such as where they live, who they might live with, and what medical treatment they receive. Appointing a guardian is a serious issue as the special needs person will lose a great deal of their independent authority. Guardianships can also be difficult, costly, and time-consuming to establish and maintain within the court system. Generally, it is better to make a hybrid plan of the less restrictive options like special needs trust, family guidance, assistive or supported living services, as well as a financial and medical powers of attorney (Health Care Proxy in New York).
A guardianship over property (referred to in some states as an adult conservatorship) is a legal action in which a guardian is appointed to make the decisions regarding an adult’s financial world, including estate and all income. This individual can be named after the petitioners in the legal action for guardianship obtain an official opinion from a physician stating the reasons for the guardianship necessity and present it to the court. In effect, the adult subject to the proceeding must exhibit a cognitive inability to direct their own financial, medical, and personal affairs before a guardianship is deemed appropriate in one way or another. Generally, adult guardianship is the right thing to do when a special needs person cannot live independently.
In the event, your child’s situation is best suited to this type of oversight and control the process is usually begun about six months before the child’s 18th birthday. These six months allow adequate time to obtain the necessary medical, psychological or psychiatric opinions required as well as obtain the input from a guardian ad litem (a representative court-appointed to protect the rights of the “adult child”) and prepare the court petition for the appointment of a guardian.
The most common alternative to guardianship is a power of attorney. In this instance, a legal document provides for a person (for example, your “adult child” or “parent”) to appoint an individual to make decisions and take actions on behalf of that person. Essentially this allows the adult child to delegate authority to one or both parents, or two one or more adult children, whichever case it may be, and name successor agents if the primary nominated agent was unable to perform on behalf of the principal’s affairs. There are two types of powers of attorney to use in place of a guardianship. The first is an Health Care Power of Attorney (Health Care Proxy), and the second is a Power of Attorney.
A Health Care Proxy provides the agent with the ability to make decisions about medical affairs for your special needs person from day-to-day health care up until the end of life decisions. A power of attorney permits an agent to make decisions about your child’s financial and administrative affairs. If these two documents are properly drafted, and the right agents selected a guardianship is not necessary. The benefit is the lower cost of securing the desired result without the need for annual reporting to the court system unless the special needs person can make that specific request. The appointing of an agent under the power of attorney can be kept entirely private from the court system so long as your child demonstrates an adequate facility for oversight and understanding. The special needs child must be able to understand the nature of power of attorney consciously. They must realize the authority designated to agent control when signing the document. They must also understand the broad or limited scope of a power of attorney, the possibility to revoke a power of attorney, and that a power of attorney will continue if your special needs child becomes incapacitated. If the person is not able to understand and appreciate their circumstances, though, then they are most likely not able to sign either power of attorney or health care proxy. IN that case the guardianship is most likely the only available course of action.
If you have questions or would like to discuss your own situation in a confidential setting, please don’t hesitate to reach out. You can get in touch with the our firm offices by clicking here to book a complimentary consultation, emailing us at [email protected], or by dialing us up at (212) 920-6371.