January 10, 2013

Did you know that once your child attains age 18, you no longer have the legal right to make medical and dental decisions for him or her?  The state of New York assumes that your child has the capability to make those decisions for himself, no matter how cognitively impaired your child may be.

If your child is incapable of making medical decisions, there are significant reasons for considering guardianship of your child.  Here are a few:

  • You need to have access to your child’s doctors and want the legal right to make healthcare decisions for your child if necessary
  • Your child requires surgery or other medical attention and the hospital wants proof you are the guardian
  • Physicians and other health care providers are getting more strict about allowing you as a parent to make medical decisions (without guardianship) due to litigation exposure and HIPPA regulations
  • You want to have access to your child’s medical records
  • You require medical information from your child’s Insurance company and they will not release it without proof of guardianship

Most guardianship petitions for the mentally retarded and developmentally disabled are pursued through Surrogate’s Court.  This is referred to as a 17-A Guardianship Petition.  The process typically takes 6 – 8 months, and can be initiated prior to your child becoming 18.  The 17-A Guardianship can be attempted on your own (pro se) although the paperwork is considered by many to be burdensome and onerous.  Many parents hire an attorney to represent them—a more expensive option.

An alternative to these approaches is to have someone knowledgeable assist you in the process.  This person processes the petition similar to the attorney, but does not provide legal advice.  This option offers a cost-effective (and often more personal) manner of obtaining guardianship and the legal right to make medical decisions for your special needs child.

Please feel free to contact my office with questions regarding guardianship and to find out more about my personal guardianship services.