ARTICLE 17A GUARDIANSHIP A presentation of the Center for Independence of the Disabled, New York - Queens 1© CIDNY 2011, Article 17A Guardianship

ARTICLE 17A GUARDIANSHIP

A presentation of the Center for Independence of the Disabled,New York - Queens

1© CIDNY 2011, Article 17A Guardianship

What is Article 17A?

• A guardianship proceeding that is filed in the Surrogate Court.– A guardian protects the well being and assets of the

person for whom they are responsible.

2© CIDNY 2011, Article 17A Guardianship

Who qualifies for Article 17A ?

• A person with a developmental disability.• A person with a traumatic brain injury.

© CIDNY 2011, Article 17A Guardianship 3

What are Developmental Disabilities?

Developmental disabilities must begin before the person istwenty-two years old and can include disabilities such as:• Cerebral Palsy• Epilepsy• Neurological Impairment• Autism• Dyslexia• Intellectual Disability


What is a Traumatic Brain Injury (TBI)?

Traumatic Brain Injury (TBI) is damage to the brain caused by an injury. TBI usually results from a violent blow or jolt to thehead that causes the brain to collide with the inside of the skull. Examples of how this can happen are car accidents, falls or astroke.


Is there an age limit for TBI?

No, there is no age limit for TBI. The TBI may start after the ageof twenty-two and a person may still seek guardianship underArticle 17A.


Who can certify that a person requires a guardian?

• One licensed physician and one licensed psychologist; or

• Two licensed physicians, at least one of whom is:– familiar with or has professional knowledge in the care and

treatment of people with such a disability; and has qualifications to certify: that the person is incapable of managing her/himself

and/or her/his affairs by reason of disability, and that such condition is permanent or likely to continue

indefinitely.


Who may ask the court to be appointed a guardian?

• A parent;• Any interested person who is eighteen years or older;

or• A corporation existing under the laws of New York State and

having corporate power to act as a guardian of people with these disabilities. A corporation may only seek guardianship if no family member is involved.


When and why can a corporation seek guardianship?

• When a person is living in a residential facility and does not have a guardian.

• When a corporation needs to make health care decisions or handle some finances for the person with the disability.


What type of decisions may be made for the person with a disability?

• Withholding or withdrawing life-sustaining treatment such asartificial nutrition and hydration;

• Limited financial and property matters.


How should the decision about guardianship be made?

• It must be the decision that the person with a disability would make if she had capacity;

• It must be solely and exclusively in the best interest of the person with a disability;

• The decision must include moral and religious beliefs if they are reasonably known or can be ascertained.


LIFE-SUSTAINING TREATMENT


How can a health decision be made?

• By considering:– The dignity and uniqueness of the person;– The preservation, improvement or restoration of the

person’s health;– The relief of the person’s suffering;– Based on the person’s need for artificially provided

nutrition and hydration, and the effect it may have on the person; and

– The entire medical condition of the person.


What should not influence the health decision by the guardian?

• Thinking that the person with a disability is not entitled to the full and equal rights, protection, respect, medical care and dignity afforded to persons without disabilities;

• Financial considerations of the guardian that may affect the guardian, a health care provider or any other party.


What documents can a guardian review when making health care decisions?

• Guardians have a right to review:– Medical information– Clinical records– Financial records


What is a life-sustaining treatment?

A medical treatment that can sustain life functions and withoutwhich, according to reasonable medical judgment, the personwill die within a relatively short time period.


When can a guardian withdraw or withhold life-sustaining treatment?

When there is a degree of medical certainty that the person witha disability:• Has a terminal condition where there is no recovery and

where that condition can reasonably be expected to cause death within a year; or

• Is permanently unconscious; or• Has a medical condition, other than the disability, that is

irreversible and will continue indefinitely and that requires a life-sustaining treatment.


What must be thought about to remove a life-sustaining treatment?

The extraordinary burden on such person in light of:– the person’s medical condition (not including the

disability);– the expected outcome of the life-sustaining treatment.


How are decisions made about withdrawing artificial nutrition or hydration?

• There must be no reasonable hope for maintaining life; or

• The artificially provided nutrition or hydration poses an extraordinary burden.


Do you need medical approval to stop treatment?

Yes, you must have:– An attending doctor selected by the person with the

disability or assigned to the person; and– Another physician or psychologist; and – The decision must be documented in the person’s

medical chart.


How do you express your decision to withhold or withdraw life-sustaining treatment?

• In writing – dated and signed in the presence of a witness (18 years or older) and an attending physician; or

• Orally – to two witnesses at least one of whom is the person’s attending physician.


What happens after you express your decision?

The attending physician must include the decision in the person’schart.• The physician must promptly issue the order to withhold the

life-sustaining treatment ; and

• Inform the staff responsible for the care of the person; or

• Promptly object to the decision.


What must the physician do before implementing the decision?

• Within 48 hours, or as soon as possible, the physician must notify:– The person with the disability if the person would not

suffer immediate and severe injury from such notification;– The chief executive officer of the facility if the person is in

or transferred from a residential facility;– The Commissioner of the Office of People with

Developmental Disabilities (OPWDD) or her/his designee.


Who can object to the decision?

• The person with the disability;• A parent or sibling who lives with or has had continuous

contact with the person with the disability;• The attending doctor;• The chief executive officer of a residential facility, if the

individual was transferred from that facility;• Mental Hygiene Legal Services (if the person is in or

transferred from a residential facility); or

• The commissioner of OPWDD.


FINANCIAL & PROPERTY MATTERS


What is a limited guardian?

A person appointed by the Court to receive, manage, disburseand account for property that are not wages or earnings of theperson with a disability.


What authority does a person with a disability have over their wages and earnings?

• S/he has the right to receive and spend any and all wages and earnings from her/his employment;

• S/he has the power to contract or legally bind her/himself for up to one month’s earnings or three hundred dollars – whichever is greater – or more if the Court authorizes more.


STAND-BY GUARDIANSHIP


What is a stand-by guardian?

A person chosen to succeed the guardian if the guardian dies,becomes incapacitated, or renounces the guardianship.


When does the stand-by guardian have to assume her/his role?

A stand-by guardian can immediately take the role of guardian if:• the guardian dies, • The guardian renunciates the role, or • If the guardian is incapacitated.

However, s/he has sixty days after assuming guardianship to seekconfirmation from the court.


SOME IMPORTANT INFORMATION


How long does a guardianship last?

• Until the death of the person under guardianship; or • Until the guardianship is discharged through Court action.


Does a change in legal status end the guardianship?

No. Only a court decision can end a guardianship of a personwith a disability. The guardianship does not end when the personwith the disability reaches the age of majority or marries.


How much authority does the judge have?

Among other things, a judge can:• Waive court fees;• Ask for background checks;• Ask for fingerprinting; • Narrow or broaden financial authority;• Make a final rule, based on evidence, on end of life decisions.


Documents

ARTICLE 17A GUARDIANSHIP A presentation of the Center for Independence of the Disabled, New York - Queens 1© CIDNY 2011, Article 17A Guardianship