Understanding Article 81 vs. Article 17A Guardianship Differences

For most parents in the United States, watching their child turn eighteen is a joyous occasion as it marks the start of their adulthood and the shifting of legal responsibilities from the parents to the child. Unfortunately for many parents of disabled children, this occasion causes more stress than joy due to the increased legal obstacles now present in caring for and making decisions for their child. One way for parents to retain certain decision-making authorities over their child is to apply for guardianship. Additionally, while many appointed guardians to disabled young people are parents, any interested party over 18 years old can apply for guardianship.

Since guardianship is meant to protect individuals who have diminished decision-making capabilities, it is not only for people who were born with these types of disabilities, but also for people who develop these issues over the course of their life. Guardianship may be needed in cases of traumatic injury or severe mental illness.

There are two different application processes to become a legal guardian over an adult: Article 17A and Article 81.

Article 17A, first ratified in 1969, is legislation that allows for continued decision-making by parents of disabled children as soon as their child reaches eighteen years of age. This law was passed with individuals who have conditions that are permanent and not likely to improve in mind. Meaning, the same powers these parents held over their minor children will be held in place throughout the child’s entire life because there is no possibility for their overall function to significantly surpass that of when they were a child.

Article 81, first ratified in 1993, is legislation focusing on individuals who are already adults and have severely diminished mental and/or physical function. Because this law assumes all adults have full capacity and this law is tailored to individuals that were not born with an incapacity, it must be proven that a specific incapacity has developed before a guardian can be appointed by the Court. The severity of the incapacity must also be determined in an Article 81 proceeding. This is because Article 81 guardianships, by nature, are closely tailored to each individual so that the guardian is given no more power than what is absolutely necessary under the given set of circumstances. Closely tailored guardianships are the Court’s way of protecting the constitutional rights of the disabled while also making sure they receive the level of care they need.

The most important distinction between the two different types of guardianships is that Article 17A guardianships are primarily determined by the diagnosis alone while Article 81 guardianships take a more nuanced approach that connects functional incapacity, danger, and understanding of danger. Unlike Article 81, Article 17A does not offer tailored guidelines for each individual guardianship. All Article 17A guardianships are plenary, meaning the full power to make all decisions rests with the guardian.

There are also many procedural differences between Article 17A and Article 81:

Article 17A

Article 81

1.-There is no hearing required. A petition must be made by, or on behalf of, both parents or the survivor.
2.-The subject of the potential guardianship does not have to be present at all Court dates. They may even be dispensed if the Court considers their attendance would not be in their best interest.
3.-Does not require the appointment of an independent Court evaluator.
4.-Medical diagnoses and certifications made by the doctors treating the subject of the hearings are the main determinant in proceedings. These doctors are not subject to cross-examination.
5.-The burden of proof is unclear.

1.-A hearing is mandatory for the appointment of a guardian. The subject of the potential guardianship has the right to counsel and to cross-examine all witnesses.
2.-Attendance of the subject is required at all Court dates.
3.-Requires the appointment of an independent Court evaluator. Their job is to investigate claims made by all parties and present their unbiased recommendations to the Court.
4.-Rulings are made through a more wholistic process where multiple factors are considered.
5.-It must be proved by clear and convincing evidence by the individual seeking to become a guardian, or have a guardian appointed, that the subject is in need of a guardian.

Another factor to consider is that not all adults who meet the criteria for an Article 17A guardian are appointed one. The Court is likely to view each individual case as unique and explore whether an Article 17A or an Article 81 guardianship is more appropriate depending on the subject’s functional capacity and which option would be the least restrictive of their rights while still providing the level of care they need. Courts specifically look to see whether the individual, without Court intervention, can execute advance directives (health care proxy, power of attorney, etc.) to preserve their constitutional rights to the fullest extent possible.

The differences between the two different types of guardianships in New York State are nuanced and can be difficult to navigate if you are unfamiliar with the particular statutes and the procedures surrounding each. If you believe a loved one needs a guardian, you should consult with a legal professional before entering any court proceedings to ensure the process has minimal setbacks and that a guardian can be appointed as soon as possible.