Incapacitated Adult Article 81

Incapacitated Adult – Article 81 vs. Article 17A

Serving Clients in New York City and the New York Metropolitan Area


Guardianship can be an Important Alternative for Disabled Adults

Your adult child needs assistance with his activities of daily living, including personal needs and property management. You wonder if your child needs a guardian. During lunch you listen to several friends and their’-guardianship stories. One applied for a 17-A guardianship while another friend applied for an Article 81 guardianship. Which one is the right choice for your child and your family?

Article 17-A guardianships are created in the Surrogate Court. This is the court that handles many family matters, including estates. A 17-A proceeding is more medically driven, meaning it focuses on the individual’s medical diagnosis, and as a result you will need to obtain documents from the applicant’s examining physicians or psychiatrists.

Unlike 17-A, New York Article 81 guardianships are handled in New York’s Supreme Court, and are proceedings under the Mental Hygiene Law. They focus on functional limitations and the inability to do certain necessary tasks which result in risk and danger to the individual and to others in the community. They are behaviorial driven, and not solely about medical need. While no doctors’ letters are required for an Article 81 proceeding, you will need to prove, via testimony, that the person is unable to manage their daily affairs and is unable to appreciate the nature and consequences of such a disability.

Article 17-A is theoretically obtainable without hiring an attorney, while an Article 81 proceeding does typically require formal legal assistance.

Under 17-A, the guardian holds the guardianship funds jointly with the Surrogate’s Court and must ask for permission before withdrawing any money. Under Article 81, the guardian is generally able to use the funds without Court approval, but must annually account for the use of Guardianship funds. Note that large purchases will require Court approval.

While both 17-A and 81 guardians must account annually, the 17-A guardian submits their accountings to the Surrogate’s Court while the 81 guardian submits their accountings to a Court Examiner, who, reviews the Accounts and then submits a report and recommendations to the Court.

Gifting via substituted judgment is typically not allowed in 17-A while it may be allowed under Article 81. This means that a 17-A guardian will not be able to gift funds from the disabled child’s name to the disabled person’s family, while an 81 guardian may be able to do it, upon proof of a pattern of gifting and court approval.

Which guardianship is right for you? It depends on your facts, circumstances, and goals. Consult with the attorneys at the Grimaldi Yeung
Law Group and we will assist you in making that decision. Click here to contact us today!

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