Parents who have children approaching adulthood, in New York, that being when the child reaches his or her eighteenth birthday, know that even such a happy occasion can bring its own version of angst. Watching one’s child undertake the rights and responsibilities of adulthood involves letting go of the control the parent has had since the child was born. What parent does not wonder, “Is my child mature enough to make responsible decisions? Will he or she exercise good judgment?”
Parents of children who are intellectually disabled or developmentally disabled and who approaching their eighteen birthday face a myriad of issues. On the one-hand, the child will be legally recognized as an adult and, as such, the only person allowed to make his or her medical, financial and personal decisions; on the other hand, the particular child, because of his or her disabilities, may never be able to make these decisions. The child may not have the intellect or the proper development to choose where to live, to make medical decisions, or, in the worst-case scenario, end-of-life decisions.
There is a legal mechanism that allows parents, and legal guardians, of an intellectually disabled or developmentally disabled child to become that child’s legal guardian when that child attains legal adulthood. It is Article 17-A of the Surrogate’s Court Procedure Act. It requires commencing a proceeding in Surrogate’s Court in the county where the child resides. After the proper application is made, there is typically a hearing where it must be proved to the satisfaction of the court that the person is either intellectually disabled or developmentally disabled, or both, such that the person is incapable of managing his or her own affairs because of the disability, and that the disability is permanent or likely to continue indefinitely.
The statute requires the certification of the intellectual or developmental disability by one licensed physician and one licensed psychologist, or by two licensed physicians, at least one of whom must be familiar with or has professional knowledge about caring for and treating individuals with the particular intellectual or developmental disability. Further, the court will consider whether the appointment of a guardian or guardians is in the best interests of the allegedly disabled person and whether the applicant or applicants are suitable for the position.
If these requisites are met, after the hearing, the court will appoint a guardian or guardians for the intellectually or developmentally disabled person. The guardian or guardians will have the right to make that person’s decisions indefinitely. Since this deprives a person of the rights he or she would otherwise have as an adult, the court takes this type of appointment seriously, as one would expect. In fact, the court-appointed guardian or guardians will have to account on an annual basis for all of their ward’s finances, and they are subject to removal if the court finds any financial or other improprieties.
Article 17-A is the solution to what would otherwise present an untenable situation.