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.