September 21, 2015

I have completed many 17-A guardianship petitions for clients over the past 6 years.  Some parents, however, choose to complete the petition themselves.  For those of you who wish to take this path, I have compiled a list of 12 helpful tips that I have learned through the completion of over one hundred guardianships.  The list is not all-inclusive, but hopefully it will make your task a little easier.

*The tips offered below are intended to be used as helpful hints for completing and filing a 17-A Guardianship.  The information is not intended to be used as legal advice nor should it be used in place of legal counsel.

Tip #1:  While Article 17-A applies throughout the state of New York, there are differences among the county Surrogate’s Courts as to how it is applied regarding the completion of the petition.  For example, some Surrogate’s Courts require the presence of the petitioners at the court hearing, while other Surrogate’s Courts do not.  When in doubt, check with the Court Clerk for the Surrogate’s Court where the petition will be filed.

The Greenbook is the Surrogate’s “bible.”  Among other things, it contains the full text of the Surrogate’s Court Procedure Act, as well as amendments.

Tip #2:  A 17-A Guardianship is for those individuals with developmental disabilities, traumatic brain injury (TBI) or mental retardation.  Developmental disabilities include cerebral palsy, epilepsy, neurological impairment and autism.  If your child does not meet these criteria or has a different primary diagnosis such as a psychiatric illness, he or she may not be a candidate for this type of guardianship.  Check with a knowledgeable attorney if you are uncertain.

Tip #3:  If you are the petitioner (proposed guardian) and are divorced, be sure that you have consulted with your ex-spouse and that both of you are in agreement as to everyone’s standing on the petition since your ex-spouse’s signature will be required.  If it is decided that only one of you is to be the petitioner, there are options:

  • He/she can choose to be one of the proposed Standby Guardians instead of the Co-Petitioner.
  • He/she can sign a Waiver of Process Renunciation and Consent to Appointment of a Guardian form, waiving his rights as a guardian and consenting to those you’ve chosen as proposed guardians.

If you and your ex-spouse cannot agree, you may need to seek legal advice.

Tip #4:  The guardianship process typically takes 6 months to a year to complete, so you may want to begin the process when your child turns 17.  You can, however, petition for guardianship after your child turns 18.

Tip #5:  You may also need Guardianship of the Property in addition to Guardianship of the Person.  If your child is 18 or over and has more than $2,000 in his/her name and you plan to apply for SSI/Medicaid, this may be particularly relevant.  Guardianship of the Property will allow you to transfer your child’s assets to a Special Needs Trust so that your child’s assets do not make him ineligible for government benefits.

If your disabled child has assets or is expected to receive an inheritance, you may want to check with a qualified attorney to determine if Guardianship of the Property is necessary prior to starting the 17-A Guardianship petition.

Tip #6:  Obtaining the affidavit and affirmation (certification) from your child’s physicians/psychologist is often the most time-consuming part of the petition.  I therefore suggest that you begin with this task.  You will need a certification from one licensed physician and one licensed psychologist, or from two licensed physicians.  (Not all psychologists are licensed!)

The physician(s) are required to complete an Affirmation form which DOES NOT need to be notarized.  The licensed psychologist completes an Affidavit, which DOES require notarization.  If you choose a licensed school psychologist, make sure you have the form completed before the school year ends as they may be unavailable during the summer!

Tip #7:  The answers provided in the Affidavit and Affirmation forms MUST be consistent in certain key sections.  It is therefore strongly suggested that you have one Affirmation or Affidavit completed before you have the second physician complete their form.  My experience has been that, as a general rule, a licensed school psychologist is the most experienced when it comes to completing the affidavit.  You may then want to use the completed affidavit as a guide to help the physician complete the affirmation correctly. You can access a downloadable PDF on www.CraigsCorner.net.

Tip #8:  Include a copy of your child’s most recent psychological evaluation (within past 3 years) as supporting documentation with the petition.  You may also want to include a copy of the IEP if it offers further support.

Tip # 9:  You will need a certified copy with a raised seal of your child’s birth certificate which may not be returned to you, depending on which Surrogate Court is used to file the petition.

Hint:  Order it as you begin the process in order to have it in time for the filing of the petition.

The birth certificate can be obtained from the town hall of the hospital in which your child was born, or you can order it online at: https://usvitalrecords.org

You may want to order more than one copy to have for your records.

Tip #10:  If the parents or petitioners want to be granted the right to make end-of-life decisions, the following statement needs to be placed in Additional relief requested:   (Page 9, “I”) “The guardians be granted the authority to make health care decisions as fully set forth in SCPA 1750-b.”

Hint:  This varies from county to county, so check with the Surrogate’s Court in your county before filling in this question.

Tip #11:  When completing Form OCFS-3909 which requires 28 years of addresses, be sure to include ALL members of the household who are age 18 and over, including the respondent (disabled individual).

Tip # 12:  When completing the petition, you may want to refer to the Self-Help Center and www.NYSARC.org. The Advocacy Services Bureau of the State of New York provides instructions for completing the 17-A petition.  You can access these instructions on www.CraigsCorner.net.