![]() ![]() The standard for appointment of a general guardian requires clear and convincing evidence that a guardian is necessary and the adult is likely to suffer harm because they are unable to provide for personal needs and/or property management, and cannot adequately understand and appreciate the nature and consequences of their inability. This explainer describes the two guardianship statutes and highlights their differences. This form of guardianship does not reflect the public policies described above. An addendum to the guardianship law for minors, this law is governed by principles of "in loco parentis," preserving the idea that adults with developmental disabilities are perpetual children. The other form of guardianship, governed by the surrogate's court procedure law (developmental disability guardianship), is limited to adults diagnosed in childhood with a developmental disability, and those who have suffered a traumatic brain injury at any time. This type of guardianship is consistent with New York's public policy that recognizes that the "presence of a particular condition does not necessarily preclude a person from functioning effectively." It is also consistent with New York's public policy which supports helping individuals with developmental disabilities to advocate for themselves, and improving their opportunities in employment, integrated living, and self-direction. The law takes a nuanced approach under this type of guardianship, requiring that the guardian have decision-making authority "tailored to the individual needs" of the adult. The main focus of the law is the adult's understanding of their abilities rather than their diagnosis, whether it be dementia or a developmental disability. One form of guardianship, governed by the mental hygiene law (general guardianship), provides for the appointment of a guardian for any adult who may have a medical diagnosis that impairs their decision-making and is determined by a court to be unable to appreciate the harmful consequences of their impairment. They have starkly different perspectives and procedures. New York has two guardianship statutes that are applicable to adults with developmental disabilities. A guardian is often sought for a person who needs a surrogate to make personal care and financial decisions for them and has not executed a health care proxy or a power of attorney. ![]() JIntroductionĪ guardian for an adult is appointed by a court to make decisions for an individual found by the court to be unable to make their own financial and personal care decisions. The Government Law Center's explainers concisely map out the law that applies to important questions of public policy. ![]()
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