Special needs children present ongoing challenges as they become adults. As children, parents can provide care for them and make decisions on their behalf. However, once children turn 18 years old, they need a legal guardian. This situation can present several questions. The first is the procedure to use under New York law and the second is the selection of the guardian.

New York currently has two distinct statutory schemes under which a guardian may be appointed for a disabled adult: Article 17–A of the Surrogate’s Court Procedure Act (17–A) and Article 81 of the Mental Hygiene Law (Article 81). Article 17-A was historically used for adults with intellectual or developmental disabilities medically diagnosed at a young age. It provides a somewhat simpler and faster procedure than Article 81. In addition, families can often get help with the 17-A petition from organizations such as AHRC (Association for Help for Retarded Children) and YAI (Young Adult Institute). The guardian appointed under Article 17-A has unlimited decision-making ability. The standard that they must use is they must act in the best interests of the adult.

Article 81 applies to adults whose functional incapacities make them unable to manage themselves or property such that they are placed in danger of harm and incapable of understanding the consequences of their incapacity. This situation requires a more comprehensive determination of their functional incapacity. Guardianships under Article 81 are closely tailored to the needs of the disabled adult and the guardian’s powers are limited to provide the least intrusive invention for the alleged incapacitated adult. Also, the court supervises the guardianship and requires detailed annual reporting by the guardian. The rationale is to protect the independence and rights of the disabled adult. Article 81 proceedings are more intensive than Article 17-A requiring hearings and appointment of an independent court evaluator.

Increasingly, as more attention is being given to supportive resources for special needs adults, our courts have expressed reluctance to use an Article 17-A proceeding where the disabled adult has shown an ability to care for himself or herself even if limited. There is an intent to respect the individual’s right of independence.

The appointment of a guardian becomes even more complicated if parents are divorcing or divorced and are in conflict about who should be appointed guardian or if their relationship is infused with hostility. Divorce introduces additional stress into the situation and the parents’ antagonism can not only adversely affect their special needs child but can lead to having an independent guardian appointed for their child. Ideally, the parents can agree to be named co-guardians and make decisions cooperatively. This is an area where mediation or a collaborative process is invaluable. With mediation, a third-party neutral helps facilitate a resolution between the parties. The collaborative process takes a team approach. Each parent has his or her own attorney and financial and mental health professionals are brought in to provide assistance to the parties. The mental health professionals are licensed health care individuals who identify impediments to the process and/or raise certain emotional concerns that need to be addressed. This is especially important where there are special needs children involved.

For parents with a special needs child, the challenges do not end when the child becomes an adult. As a result, there is a continuing necessity to address the needs of their adult child. A collaborative divorce process allows parents to find a way to deal with present and future issues in a respectful and cooperative way, including disputes over guardianship and ongoing care.

If you are considering divorce or divorced and need advice regarding your special needs child, contact me for a consultation to discuss the best approach for your family.