Considerations When the Proposed Article 17-A Guardian May Not Be Suitable
In their Trusts and Estate Law column, C Raymond Radigan and Jennifer Tillman discuss the situation when the proposed guardian of an alleged incapacitated person may not be suitable or appropriate to act as guardian, and they examine practical ways to tailor the guardianship to best protect the AIP.
September 11, 2017 at 02:35 PM
15 minute read
Much of the current focus on Article 17-A involves the constitutional rights of the alleged incapacitated person (AIP). This article highlights a different concern: when the AIP is clearly in need of a guardian and fits the parameters set forth in Article 17-A, but the proposed guardian may not be suitable or appropriate to act as guardian for a multitude of reasons. For example, the parents of an adult AIP may be divorced, but both want to be named as co-guardians and the rights of each co-guardian must be detailed. Or, the proposed guardian may make appropriate decisions regarding medical care for the AIP, but there are concerns about what the proposed guardian deems to be a safe and appropriate living environment.
While there are some courts that believe an Article 17-A guardianship can be granted with additional restrictions, other courts have ruled that Article 81 is a more appropriate vehicle for tailoring a guardianship. However, under either statute the problem remains that there may be a need for additional monitoring or restrictions upon the guardian in order to protect the AIP. We submit that there are practical ways to tailor an Article 17-A guardianship in these circumstances.
Tailoring a Guardianship
The most notable case for tailoring an Article 17-A guardianship was in Guardianship of Yvette A., 27 Misc.3d 945 (Surr Ct New York Co 2010) wherein the father of Yvette, the AIP, petitioned for guardianship. Yvette was clearly a person in need of a guardian, however the petitioner had admittedly been absent from his daughter's life for approximately 16 years, admittedly did not have a plan for her continued care and treatment, and was unclear of her exact diagnosis.
The New York County Surrogate's Court found that it was in Yvette's best interests to have her father appointed as guardian of the person under Article 17-A, rather than Article 81. However, because of the petitioner's history of non-involvement, the court placed restrictions on the guardianship including requiring petitioner to file extensive annual reports with the guardianship department of the court that included (i) the petitioner's current address and telephone number; (ii) Yvette's current address; (iii) the dates and times of petitioner's visits with Yvette (a minimum of six times in a six-month period and twelve times in a twelve-month period); (iv) a report on Yvette's current medical condition (with references to the reports reviewed); (v) any changes in Yvette's condition; (vi) a list of Yvette's daily activities and the frequency of her attendance; (vii) any proposed plan that petitioner had to change Yvette's living arrangements, daily activities or care, and the reasons for the change.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllJudgment of Partition and Sale Vacated for Failure To Comply With Heirs Act: This Week in Scott Mollen’s Realty Law Digest
Caught In the In Between: A Legal Roadmap for the Sandwich Generation
8 minute readGift and Estate Tax Opportunities and Potential Traps in 2025 for Our New York High Net Worth Clients
7 minute readTrending Stories
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250