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Guardianship Proceedings

THIS IS A GENERAL DESCRIPTION OF GUARDIANSHIP PROCEEDINGS. PLEASE REFER TO THE STATUTES FOR SPECIFIC REQUIREMENTS.

Guardianship of an Infant:

SCPA Article 17 governs the appointment, duties and authority of a guardian of an infant (any child under the age of 18). A guardian may be appointed of the person and property, of the person only, or of the property only of an infant. The proceeding is brought in the Surrogate's Court of the County where the infant is domiciled or if he/she is a non-domiciliary but has property situate in that County. If an infant is to receive monies over the amount of $10,000.00 pursuant to the terms of a will, by the laws of intestacy, or by a wrongful death proceeding, a petition for guardianship is required by the Court. See FORMS for petition and supporting documents.

SCPA Article 17-A governs the appointment, duties and authority of a guardian of mentally retarded and/or developmentally disabled persons. Mental retardation means sub-average intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior. (See Mental Hygiene Law Section 1.03 (21)). For purposes of Article 17-A, it is a person who has been certified by one licensed physician and one licensed psychologist (or by two licensed physicians, at least one of whom has professional knowledge in the care and treatment of persons with mental retardation) as being incapable to manage himself/herself and his/her affairs by reason of mental retardation or developmental disability and that such condition is permanent in nature or likely to continue indefinitely.  See FORMS for petition and supporting documents.

A developmentally disabled person (DDP) is a person whose disability:

1. is attributable to cerebral palsy, epilepsy, neurological impairment, autism or traumatic head injury;

2. is attributable to any other condition of a person found to be closely related to mental retardation, because such condition results in similar impairment of general intellectual functioning or adoptive behavior to that of mentally retarded persons; or

3. is attributable to dyslexia from a disability described in subdivisions one or two (above) or mental retardation; and

4. originates before such person attains age twenty-two, provided, however, that no such age of origination shall apply (for the purpose of Article 17-A) to a person with traumatic head injury. (See Mental Hygiene Law Section 1.03 (22) and SCPA Section 1750-a)

Article 17-A applies to the appointment of a guardian of the person and property, the person only, or the property only of either a mentally retarded infant or a mentally retarded adult (MR) and/or a developmentally disabled person (DDP). If a guardian is appointed for a mentally retarded and/or developmentally disabled infant, the guardianship does not terminate upon the infant reaching majority.

Guardianship of Adults Who Become Incapacitated:

Supreme Courts and County Courts have jurisdiction over the person and property of an mentally incapacitated adult. (See Mental Hygiene Law Article 81) A proceeding under this article shall be brought in the Supreme Court within the judicial district, or in the County Court of the county in which the person alleged to be incapacitated resides, or is physically present. Please contact the Supreme or County Court in the appropriate county for additional information.

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