Guardianship of a Child with Special Needs

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In the State of New York children are considered adults when they reach the age of 18. All children are considered legally competent and capable of making decisions for themselves independently at 18 years of age. However, if you have a child with special needs you may be aware your child’s disability may never allow him or her to be a legally competent adult. In the State of New York no matter how severe your child’s disability is, you will need to take legal action to have a guardian appointed for your child after they turn 18. In addition to parents appointing themselves as guardians of their children, it is also recommended they appoint successor guardians in the event of the parents’ disability or death. Successor guardians are an important component of the guardianship process because children generally outlive their parents.

Guardianship Proceedings in New York Surrogate’s Court

In the State of New York guardianship proceedings for children who turn 18 are usually brought in the Surrogate’s Courts. The procedure is pursuant to New York Surrogate’s Court Procedure Act 17-A. The parents must produce documentation of the disability of their child. This can be done by submitting affidavits from the child’s physicians. The application to the court must also explain to the court the child would not be in a position to manage his or her own affairs. After the application is brought to the court, the court appoints an attorney to the represent the child. This attorney will usually investigate the child’s circumstances and ascertain the truthfulness contained in the parents’ petition. The guardianship proceeding should be part of the planning for the child’s long term care. The guardianship application should be brought long before the child turns 18 years of age. Guardianships are not simple proceedings. It is highly recommended that you retain a guardianship law firm familiar with the needs of special needs children to represent you in these proceedings.

VIDEO: Guardianships

On today’s video blog Elliot discusses the topic of Guardianships.

Mother Appointed Guardian of Developmentally Disabled Son

A person signing guardianship papers

In a proceeding before Surrogate Rita Mella in Manhattan Surrogate’s Court both a mother and a father had brought an Article 17A guardianship proceeding under the Surrogate Court Procedure Act (“SCPA”). Each of the parents sought to be appointed the guardian of Elijah J., a developmentally disabled individual. A guardian ad litem (temporary guardian during the court case) was appointed by the court to conduct an investigation as to who would be the more appropriate individual to be the Article 17A guardian for Elijah. The guardian ad litem concluded that the mother was the more appropriate person to be appointed guardian. She had acted as Elijah’s primary caretaker for his entire life.

Evidence Submitted

There was also uncontroverted testimony and documentary evidence submitted that Elijah was indeed a developmentally disabled individual who did not have the capacity to make health care and other decisions for himself. The court decided it would be in Elijah’s best interest for a guardian to be appointed for him.

Father Not Involved with Day to Day Care

The court also found that the father had failed to present evidence of his substantial involvement with Elijah. The father also failed to show that he was familiar with Elijah’s medical care and personal needs. He was also not sufficiently up to date with regard to Elijah’s educational progress. Judge Mella found the father’s failure to establish he had a plan for Elijah’s needs and the fact that he had not participated in raising Elijah or taking care of Elijah would make him an unsuitable person to become Elijah’s guardian. Justice Mella therefore granted the mother’s petition to become Elijah’s guardian. She also appointed the father as the standby guardian (guardian if mother is no longer available for Elijah.

Attorney Elliot Schlissel

The Law Offices of Schlissel DeCorpo brings guardian cases throughout the Metropolitan New York area both under the Surrogate’s Court Procedure Act Article 17A and under Article 81 of the New York Mental Hygiene Law.

Elder Abuse

Black & white photo of an elderly woman

Elder abuse can be defined as actions occurring within a relationship of trust which harms or injures a senior. The abuse can be of a physical nature. It could also be sexual, emotional or financial. Simply abandoning a senior in a time of his or her needs can be also considered elder abuse.

THE ELDER ABUSERS

There are numerous persons who have relationships with seniors who have in the past committed elder abuse. These individuals involve family members, loved ones, doctors, lawyers, strangers, neighbors and other parties. Unfortunately in many situations where a senior is abused they are not in a position to report the elder abuse to the appropriate authorities.

PHYSICAL ABUSE OF THE ELDERLY

Physical abuse of the elderly can simply involve a care giver allowing the senior to deteriorate. In more extreme cases the senior is beaten, slapped, pushed and subject to being fearful of the abuser. The senior can also be neglected. He or she can be subject to not being properly fed, living in a situation of poor physical hygiene as well as having his or her health related problems unattended and uncared for. The senior can also be emotionally abused. This involves individuals engaging in various types of psychological abuse related to keeping the senior in a position where he or she cannot communicate with other friends or loved ones and/or the senior being maintained in a condition where he or she is continually afraid of actions or inaction’s taken by the person who is supposed to take care of them. In extreme situations seniors who are subject to Alzheimer’s and dementia disease can also be sexually assaulted.

GUARDIANSHIP PROCEEDINGS

Attorney Elliot Schlissel

Family members, friends, neighbors and others who have contact with seniors who suspect senior abuse need to contact the local authorities to deal with this issue. In addition family members can bring guardianship proceedings under Article 81 of the Mental Hygiene Law in the State of New York to be named as the guardian of the senior so they will be in a position to protect the senior.

DETAILS OF NEW GUARDIANSHIP LAW

Silhouette of a child and parent

On July 21, 2016 the New York State Legislature enacted a new guardianship law entitled “Peter Falk’s Law.” This new statute requires the court in issuing a guardianship order to consider the persons entitled to visitation with the incapacitated individual. It also takes into consideration those individuals who should be entitled to receive notice of hospitalization, death, funeral arrangements and burial arrangements with regard to the incapacitated individual. Prior to the enactment of this statute, the guardian had no obligation to provide children or other family members of the information concerning the health and general welfare of the incapacitated person. The reasons for this new statute relate to guardianship lawsuits that were started by adult children of celebrities Glenn Campbell, Casey Kasem and Peter Falk.

DETAILS OF NEW GUARDIANSHIP LAW

These changes to the New York Guardianship Statute now require the judge issuing the guardianship order to put specific powers in the order regarding the guardian. The guardian now must provide information of the incapacitated person’s death, funeral arrangements, final resting place and other issues concerning the burial of this individual.

VISITATION WITH FAMILY MEMBERS

Under the prior guardianship statute, the guardian was in the position to control who and when family members and friends could visit the incapacitated person. Now the court order appointing the guardian has to identify those individuals who are entitled to visit with the impaired individual.

In the Peter Falk case, Casey Kasem case and Glenn Campbell case, adult children of these celebrities were kept from seeing their dying parent by a second wife who was not their mother. This caused litigation between the children and the second wives.

CONCLUSION

Attorney Elliot Schlissel

The divorce rates in the United States continue to climb. In the future there will be many more situations involving second, third wives and children from earlier relationships. This creates considerable potential for problems between children of prior marriages and their step parents. This new statute takes into consideration not only the interest of the alleged incapacitated person but the desires of other family members to continue to maintain relationships with him or her and visit with their family members should he or she become ill or hospitalized.

Guardianship Lawyers

A family holding hands

The constitution of the United States provide that all citizens shall be entitled to health, wealth, and happiness, To enjoy health wealth and happiness, individuals must have independence. If an individual loses his or her capacity to make financial and/or medical decisions a guardianship proceeding can be brought to help this individual. However, guardianship proceedings deal with removing an individuals ability to make independent decisions regarding their finances and healthcare. Courts take the loss of these rights very seriously. The importance of these constitutional rights tend to make guardianship proceedings in the state of New York complicated matters.

Types of Guardianships

There are two statutes in the state of New York that deal with guardianship proceedings.

17A Guardianships Under the New York Surrogate’s Court Procedure Act

These guardianships are brought by parents of children with special needs. The special needs can be related to developmental problems, accidents, injuries that cause disabilities and other issues that prevent children after they reach the age of eighteen (majority of the state of New York) who are unable to take care of their personal and financial matters. Under New York state law when an individual becomes eighteen years of age they become an adult. Parents no longer have the ability to make decisions for a child. If the child has mental or psychological issues the parent needs to bring a guardianship proceeding under article 17A of the Surrogate’s Court procedure act to continue to be legally responsible for making decisions for their adult developmentally disabled child. This is a relatively complicated matter that is brought before the Surrogate’s Court in the state of New York.

Article 17 Guardianships for Minors

In cases where minors inherit assets worth more than $10,000.00 courts have an obligation to oversee that these assets are properly maintained and managed. This usually occurs when a minor receives funds through an inheritance, accident case, or medical malpractice case. The purpose of this type of guardianship is to make sure the minors assets are protected until he or she becomes an adult. The age of majority when the minor becomes an adult in the state of New York is 18 years of age. In these cases a guardian is appointed to make financial decisions on behalf of the minor child until he or she turns 18 years of age.

Article 81 Guardianships

Article 81 Guardianships are brought pursuant to article 81 of the New York Mental Hygiene Law. These guardianship proceedings are brought in the Supreme Court in the state of New York. These cases generally are about, seniors who were competent at one time but now suffer from either a mental or a physiological disability that prevents them from making financial and personal care decisions. These individuals can suffer from Alzheimer’s disease, dementia, accidents involving brain injuries and or other injuries related to aging. The process for article 81 guardianships under New York Mental Hygiene Law is completely different than the 17A guardianship proceedings.

Guardianship Attorneys

NY Attorney Elliot Schlissel

Guardianship lawyers at the Law Offices of Schlissel DeCorpo have been representing individuals bringing guardianship proceedings, challenging guardianship proceedings and protecting the rights of the alleged incompetent in the state of New York, for more than 35 years, Elliot S. Schlissel and his associates have helped individuals throughout the Metropolitan New York area have their rights protected in guardianship lawsuits in both under article 17 of Surrogate’s Court Procedure Act and Article 81 of the New York Mental Hygiene Law.

ALZHEIMER’S DEMENTIA AND GUARDIANSHIPS: WHEN IS A GUARDIANSHIP NECESSARY?

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If a family member comes down with Alzheimer’s disease or dementia, should you bring a guardianship proceeding on their behalf? In many situations, individuals who develop Alzheimer’s disease or dementia have sufficient mental capabilities to take care of themselves. Alzheimer’s disease and dementia in the early stages may only result in problems of short-term forgetfulness. These individuals may still be capable of handling a large majority of their personal and financial affairs. They may not require a guardianship to help them. However, in the second and third stages of Alzheimer’s and dementia, individuals lose a significant amount of their ability to take care of their financial issues and maintain themselves. They may forget about taking medication related to pending illness and problems. They may forget to pay their electric and heating bills, which can result in their home being in dark or without heal.

GUARDIANSHIP PROCEEDING

Guardianship proceedings can be expensive. A properly drafted power of attorney in many situations can be used to help the senior to deal with personal as well as financial issues. This may eliminate the need for the appointment of a guardian. The senior should also have a will and health care proxy.

NURSING HOMES

Individuals who develop Alzheimer’s and dementia ill eventually require nursing home care. Nursing homes can cost between twelve and fourteen thousand dollars a month. Estate planning can accomplish preserving an individual’s assets and not having them eaten up by the nursing home when he or she finds it necessary to be cared for in a nursing home.

WHO CAN BRING A GUARDIANSHIP PROCEEDING?

NY Attorney Elliot Schlissel

The following is a list of individuals who can bring a guardianship proceeding:

  1. A loved one of the individual such as a spouse or child;
  2. The executor or administrator of the estate unless the individual is the beneficiary;
  3. The individual himself or herself;
  4. The trustee of a trust, unless the individual has an interest in it;
  5. A person representing the nursing home in which the individual is staying at;
  6. A welfare agency or Department of Social Services agency.
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