THIS IS A GENERAL DESCRIPTION OF GUARDIANSHIP
PROCEEDINGS. PLEASE REFER TO THE STATUTES FOR SPECIFIC REQUIREMENTS.
Guardianship of an Infant:
SCPA Article 17 governs the appointment, duties
and authority of a guardian of an infant (any child under the
age of 18). A guardian may be appointed of the person and property,
of the person only, or of the property only of an infant. The
proceeding is brought in the Surrogate's Court of the County
where the infant is domiciled or if he/she is a non-domiciliary
but has property situate in that County. If an infant is to
receive monies over the amount of $10,000.00 pursuant to the
terms of a will, by the laws of intestacy, or by a wrongful
death proceeding, a petition for guardianship is required by
the Court. See FORMS
for petition and supporting documents.
SCPA Article 17-A governs the appointment,
duties and authority of a guardian of mentally retarded and/or
developmentally disabled persons. Mental retardation means sub-average
intellectual functioning which originates during the developmental
period and is associated with impairment in adaptive behavior.
(See Mental Hygiene Law Section 1.03 (21)). For purposes of
Article 17-A, it is a person who has been certified by one licensed
physician and one licensed psychologist (or by two licensed
physicians, at least one of whom has professional knowledge
in the care and treatment of persons with mental retardation)
as being incapable to manage himself/herself and his/her affairs
by reason of mental retardation or developmental disability
and that such condition is permanent in nature or likely to
continue indefinitely. See FORMS
for petition and supporting documents.
A developmentally disabled person (DDP) is a person whose disability:
1. is attributable to cerebral palsy, epilepsy, neurological
impairment, autism or traumatic head injury;
2. is attributable to any other condition of a person found
to be closely related to mental retardation, because such condition
results in similar impairment of general intellectual functioning
or adoptive behavior to that of mentally retarded persons; or
3. is attributable to dyslexia from a disability described in
subdivisions one or two (above) or mental retardation; and
4. originates before such person attains age twenty-two, provided,
however, that no such age of origination shall apply (for the
purpose of Article 17-A) to a person with traumatic head injury.
(See Mental Hygiene Law Section 1.03 (22) and SCPA Section 1750-a)
Article 17-A applies to the appointment of a guardian of the
person and property, the person only, or the property only of
either a mentally retarded infant or a mentally retarded adult
(MR) and/or a developmentally disabled person (DDP). If a guardian
is appointed for a mentally retarded and/or developmentally
disabled infant, the guardianship does not terminate upon the
infant reaching majority.
Guardianship of Adults Who Become Incapacitated:
Supreme
Courts and County Courts have jurisdiction over the person and
property of an mentally incapacitated adult. (See Mental Hygiene
Law Article 81) A proceeding under this article shall be brought
in the Supreme Court within the judicial district, or in the
County Court of the county in which the person alleged to be
incapacitated resides, or is physically present. Please contact
the Supreme or County Court in the appropriate county for additional
information.
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