Guardianship:

A Planning Alternative for Persons with Mental Retardation and Developmental Disabilities

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.

	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.