ARTICLE 17A GUARDIANSHIP
A presentation of the Center for Independence of the Disabled,
New York - Queens
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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.
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Who qualifies for Article 17A ?
• A person with a developmental disability.
• A person with a traumatic brain injury.
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What are Developmental Disabilities?
Developmental disabilities must begin before the person is
twenty-two years old and can include disabilities such as:
• Cerebral Palsy
• Epilepsy
• Neurological Impairment
• Autism
• Dyslexia
• Intellectual Disability
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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 the
head that causes the brain to collide with the inside of the skull.
Examples of how this can happen are car accidents, falls or a
stroke.
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Is there an age limit for TBI?
No, there is no age limit for TBI. The TBI may start after the age
of twenty-two and a person may still seek guardianship under
Article 17A.
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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.
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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.
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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.
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What type of decisions may be made
for the person with a disability?
• Withholding or withdrawing life-sustaining treatment such as
artificial nutrition and hydration;
• Limited financial and property matters.
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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.
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LIFE-SUSTAINING TREATMENT
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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.
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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.
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What documents can a guardian review
when making health care decisions?
• Guardians have a right to review:
– Medical information
– Clinical records
– Financial records
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What is a life-sustaining treatment?
A medical treatment that can sustain life functions and without
which, according to reasonable medical judgment, the person
will die within a relatively short time period.
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When can a guardian withdraw or
withhold life-sustaining treatment?
When there is a degree of medical certainty that the person with
a 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.
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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.
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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.
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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.
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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.
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What happens after you express
your decision?
The attending physician must include the decision in the person’s
chart.
• 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.
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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.
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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.
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FINANCIAL & PROPERTY MATTERS
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What is a limited guardian?
A person appointed by the Court to receive, manage, disburse
and account for property that are not wages or earnings of the
person with a disability.
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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.
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STAND-BY GUARDIANSHIP
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What is a stand-by guardian?
A person chosen to succeed the guardian if the guardian dies,
becomes incapacitated, or renounces the guardianship.
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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 seek
confirmation from the court.
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SOME IMPORTANT INFORMATION
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How long does a guardianship last?
• Until the death of the person under guardianship; or
• Until the guardianship is discharged through Court action.
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Does a change in legal status end
the guardianship?
No. Only a court decision can end a guardianship of a person
with a disability. The guardianship does not end when the person
with the disability reaches the age of majority or marries.
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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.
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