There are two major types of New York State guardianships. Guardianships under Article 81 of the Mental Health Law are referred to as “MHL Article 81,” and Guardianships under Article 17-A of the Surrogate Court Procedure Act are called “SCPA Article 17-A”.
Although some individuals can qualify for both types, it is clear in most cases which guardianship fits best. We will examine the two types of guardianships more closely and point out some differences and similarities.
SCPA Article 17-A Guardianships – Article 17-A guardianships are mostly thought by parents of mentally retarded or developmentally disabled children who are about to turn 18. Those parents use guardianship as a tool to extend their care and control after the disabled person reaches the age of majority.
A SCPA 17-A guardianship is granted by the Surrogate’s Court. It can include a guardianship of the person, property, or both. A 17-A guardian is authorized to make healthcare decisions.
Typically, the assets of a 17-A ward are held by the clerk of the Surrogate’s Court, unless the court fixes a bond. The guardian will be required to deposit all of the ward’s funds into the account held jointly with the court, and will need an endorsement of the surrogate clerk on every check made out of that account.
MHL Article 81 Guardianships – Guardianships for the elderly and victims of trauma are mostly obtained through MHL Article 81 proceedings. Article 81 is sometimes also used for the mentally ill and developmentally disabled.
SCPA Article 17-A only authorizes a guardian for an individual who is mentally retarded or developmentally disabled. MHL Article 81 does not have that limitation, and so can be applied to any individual who admits to being incapacitated or is determined by the court to be incapacitated. On the flip side, MHL Article 81 guardianships are often less powerful, giving guardians only the powers that are absolutely necessary for the ward’s needs.
Common Elements of Both Types of Guardianships – In both types of guardianships, the guardian has a duty to look out for the best interest of the ward. Where the guardianship is of the property, the guardian must submit reports to the court at regular intervals.