Incapacitated Minor – Article 17A
Your adult child needs assistance with his activities of daily living, including personal needs and property management. Your child needs a guardian. During lunch you listen to your friends’ guardianship stories. One applied for 17-A guardianship while the other applied for 81 guardianship. Which one is the right choice for you?
17-A is more diagnosis driven, so you will need to obtain documents from your child’s examining physicians or psychiatrists. Unlike 17-A, 81 is about functional limitations. While no doctors letters are required, 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.
17-A is theoretically obtainable without hiring an attorney while 81 does typically requires legal assistance.
Under 17-A, the guardian holds the funds jointly with the Surrogate’s Court and must ask for permission before withdrawing any money. Under 81, the guardian is generally able to use the funds without Court approval. Note that large purchases still 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 to the Court.
Gifting via substituted judgment is typically not allowed in 17-A while it is allowed under 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.
So, which guardianship is right for you? It depends on your facts, circumstances, and goals.