What is Guardianship?
Guardianship is a legal proceeding in the
Niagara County Surrogate’s Court which designates a parent, relative, friend, or an
organization to act on behalf of an individual who is mentally retarded and/or
developmentally disabled and incapable of managing his or her own personal affairs without
assistance.
Guardianship enables parents to ensure that
they or other designees of their choosing can act as advocates with legal authority on
behalf of their children in protecting their rights, fostering their quality of life. The
process empowers a guardian to maximize all available resources for the benefit of the
person who is mentally retarded or developmentally disabled.
In New York State, parents of persons who
are mentally retarded or developmentally disabled are considered the natural guardians of
their children, as with any other child, until the child turns 18. After a person turns
18, he or she is deemed legally competent. Guardianship authorizes parents to exercise
legal supervision of their children and provide them with lifetime protection even after
they reach the age of 18. Once guardianship is obtained, it will extend for the lifetime
of the individual, until terminated by the court.
Typical Reasons to Consider Guardianship: |
|
Planning for present
or future needs of an individual |
|
Decisions about
medical care and treatment |
|
Concerns about
provision of quality of daily activities (i.e. living arrangements, financial, social and
vocational activities) |
|
Oversight of finances
and/or property |
|
Concern that
"state" will "take control" of son or daughter if residing in a
residential setting, or that guardianship is required for such residential alternatives |
|
Establish a stand-by
guardian |
Types of Guardianship:
1.
Guardianship
of the Person: The guardian of the person is appointed by the court to manage the
personal affairs of an individual who is mentally retarded or developmentally disabled and
provide assistance in making decisions concerning his or her care. Although the
guardianship statute does not specifically enumerate powers and duties of the guardian of
the person, the powers are at least as broad as those of parents who act for minor
children, including authority necessary to make personal decisions for them on their
behalf and in their best interest, such as securing good health care, appropriate housing,
day programs, and recreational services.
A guardian is not responsible for the acts
or financial obligations of the person who is mentally retarded or developmentally
disabled.
2.
Guardian
of the Property: The guardian of the property, under the supervision of the court, is
responsible for the management of any and all financial resources of the person who is
mentally retarded or developmentally disabled with the exception of the representative
payee funds such as Social Security. The property guardian is charged with protecting and
preserving the individual’s property, and permission must first be obtained from the
court before any funds can be invested or spent on behalf of the person who is disabled.
The guardian of the property is required to
provide an accounting or detailed report of all financial transactions to the court,
including the management and expenditures of the person’s money.
Opportunities Unlimited of Niagara can assist
families in obtaining guardianship and completing the required paperwork. There is an
application fee of $20, money orders (the court will not accept a check) can be made
payable to Niagara County Surrogate Court. If
the person who you are applying for has not be deemed eligible for services through the
Western New York DDSO, the agency will charge a $50.00 fee for service for assisting you
in the application process.
In addition, Standby Guardian: One
of the most important reasons for parents to consider establishing guardianship even
before their child reaches the age of 18 is to appoint a standby guardian and alternatives
so that parents can make the selection of the person who will assume the legal authority
to care for their child when they are no longer able to do so.
In many instances, one or both parents will
act initially as the guardian of the individual who is mentally retarded or
developmentally disabled, and they can designate a standby guardian (and alternates) to
serve in the same role upon the death or inability of the parents. The standby guardian is
permitted to assume the guardianship duties immediately, subject to Court confirmation
within sixty days. Beyond the age of 18, guardianship of the person who is mentally
retarded or developmentally disabled may not be validly designated in a will.
When Should Guardianship be Established?
If parents believe that their child is
unable to make sound decisions in regard to personal care and/or financial matters and
that he or she will require guidance and supervision throughout his/her lifetime,
guardianship and standby guardianship should be established at or shortly before the
person is 18, but can be established at any time but should be done before the person’s
65 birthday.
What is Necessary to Establish
Guardianship?
In order for the court to authorize the
appointment of a guardian, it must be satisfied that the guardianship is necessary and in
the best interest of the person who is mentally retarded or developmentally disabled. The
determination is made, based upon a finding that the individual is mentally retarded or
developmentally disabled and thereby incapable of managing his or her affairs, and that
this condition is permanent.
The minimum proof required by the court
includes certifications of the condition by one licensed physician and one licensed
psychologist, or by two licensed physicians at least one of who is familiar with or has
professional knowledge in the care and treatment of a person with mental retardation
and/or developmental disabilities.
You may ask, "Why is it necessary for
me to become a guardian of my family member?"
It really depends on the doctor or hospital
where your family member may require a medical procedure. More frequently, Opportunities
Unlimited of Niagara is being asked by these professionals if consumers have a Legal
guardian in place before they will administer care or proceed with a procedure. Here is an
example. A consumer had a problem with her ankle. This problem required surgery, and the
physician would not perform the surgery unless a Legal guardian was appointed. Luckily,
the Legal guardian had been named the day before this occurred. If the guardian had not
been appointed, the consumer may have to wait up to six weeks to have a surrogate decision
making committee meet to facilitate the
surgery. Another good example is tooth extraction. Some medical professionals will not do
this without a Legal guardian. Can you imagine waiting in pain for up to six weeks in
order to obtain a court order?
Legal Guardian: Can you imagine waiting in pain for six weeks in order to obtain a court order? For more information call (716) 434-4050.
