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ARTICLE 17A GUARDIANSHIP A presentation of the Center for Independence of the Disabled, New York - Queens 1© CIDNY 2011, Article 17A Guardianship
What is Article 17A? A guardianship proceeding that is filed in the Surrogate Court. – A guardian protects the well being and assets of the person for whom they are responsible. 2© CIDNY 2011, Article 17A Guardianship
Who qualifies for Article 17A ? A person with a developmental disability. A person with a traumatic brain injury. © CIDNY 2011, Article 17A Guardianship3
What are Developmental Disabilities? Developmental disabilities must begin before the person is twenty-two years old and can include disabilities such as: Cerebral Palsy Epilepsy Neurological Impairment Autism Dyslexia Intellectual Disability © CIDNY 2011, Article 17A Guardianship4
What is a Traumatic Brain Injury (TBI)? Traumatic Brain Injury (TBI) is damage to the brain caused by an injury. TBI usually results from a violent blow or jolt to the head that causes the brain to collide with the inside of the skull. Examples of how this can happen are car accidents, falls or a stroke. © CIDNY 2011, Article 17A Guardianship5
Is there an age limit for TBI? No, there is no age limit for TBI. The TBI may start after the age of twenty-two and a person may still seek guardianship under Article 17A. © CIDNY 2011, Article 17A Guardianship6
Who can certify that a person requires a guardian? One licensed physician and one licensed psychologist; or Two licensed physicians, at least one of whom is: – familiar with or has professional knowledge in the care and treatment of people with such a disability; and has qualifications to certify: that the person is incapable of managing her/himself and/or her/his affairs by reason of disability, and that such condition is permanent or likely to continue indefinitely. © CIDNY 2011, Article 17A Guardianship7
Who may ask the court to be appointed a guardian? A parent; Any interested person who is eighteen years or older; or A corporation existing under the laws of New York State and having corporate power to act as a guardian of people with these disabilities. A corporation may only seek guardianship if no family member is involved. © CIDNY 2011, Article 17A Guardianship8
When and why can a corporation seek guardianship? When a person is living in a residential facility and does not have a guardian. When a corporation needs to make health care decisions or handle some finances for the person with the disability. © CIDNY 2011, Article 17A Guardianship9
What type of decisions may be made for the person with a disability? Withholding or withdrawing life-sustaining treatment such as artificial nutrition and hydration; Limited financial and property matters. © CIDNY 2011, Article 17A Guardianship10
How should the decision about guardianship be made? It must be the decision that the person with a disability would make if she had capacity; It must be solely and exclusively in the best interest of the person with a disability; The decision must include moral and religious beliefs if they are reasonably known or can be ascertained. © CIDNY 2011, Article 17A Guardianship11
LIFE-SUSTAINING TREATMENT © CIDNY 2011, Article 17A Guardianship12
How can a health decision be made? By considering: – The dignity and uniqueness of the person; – The preservation, improvement or restoration of the person’s health; – The relief of the person’s suffering; – Based on the person’s need for artificially provided nutrition and hydration, and the effect it may have on the person; and – The entire medical condition of the person. © CIDNY 2011, Article 17A Guardianship13
What should not influence the health decision by the guardian? Thinking that the person with a disability is not entitled to the full and equal rights, protection, respect, medical care and dignity afforded to persons without disabilities; Financial considerations of the guardian that may affect the guardian, a health care provider or any other party. © CIDNY 2011, Article 17A Guardianship14
What documents can a guardian review when making health care decisions? Guardians have a right to review: – Medical information – Clinical records – Financial records © CIDNY 2011, Article 17A Guardianship15
What is a life-sustaining treatment? A medical treatment that can sustain life functions and without which, according to reasonable medical judgment, the person will die within a relatively short time period. © CIDNY 2011, Article 17A Guardianship16
When can a guardian withdraw or withhold life-sustaining treatment? When there is a degree of medical certainty that the person with a disability: Has a terminal condition where there is no recovery and where that condition can reasonably be expected to cause death within a year; or Is permanently unconscious; or Has a medical condition, other than the disability, that is irreversible and will continue indefinitely and that requires a life-sustaining treatment. © CIDNY 2011, Article 17A Guardianship17
What must be thought about to remove a life-sustaining treatment? The extraordinary burden on such person in light of: – the person’s medical condition (not including the disability); – the expected outcome of the life-sustaining treatment. © CIDNY 2011, Article 17A Guardianship18
How are decisions made about withdrawing artificial nutrition or hydration? There must be no reasonable hope for maintaining life; or The artificially provided nutrition or hydration poses an extraordinary burden. © CIDNY 2011, Article 17A Guardianship19
Do you need medical approval to stop treatment? Yes, you must have: – An attending doctor selected by the person with the disability or assigned to the person; and – Another physician or psychologist; and – The decision must be documented in the person’s medical chart. © CIDNY 2011, Article 17A Guardianship20
How do you express your decision to withhold or withdraw life-sustaining treatment? In writing – dated and signed in the presence of a witness (18 years or older) and an attending physician; or Orally – to two witnesses at least one of whom is the person’s attending physician. © CIDNY 2011, Article 17A Guardianship21
What happens after you express your decision? The attending physician must include the decision in the person’s chart. The physician must promptly issue the order to withhold the life-sustaining treatment ; and Inform the staff responsible for the care of the person; or Promptly object to the decision. © CIDNY 2011, Article 17A Guardianship22
What must the physician do before implementing the decision? Within 48 hours, or as soon as possible, the physician must notify: – The person with the disability if the person would not suffer immediate and severe injury from such notification; – The chief executive officer of the facility if the person is in or transferred from a residential facility; – The Commissioner of the Office of People with Developmental Disabilities (OPWDD) or her/his designee. © CIDNY 2011, Article 17A Guardianship23
Who can object to the decision? The person with the disability; A parent or sibling who lives with or has had continuous contact with the person with the disability; The attending doctor; The chief executive officer of a residential facility, if the individual was transferred from that facility; Mental Hygiene Legal Services (if the person is in or transferred from a residential facility); or The commissioner of OPWDD. © CIDNY 2011, Article 17A Guardianship24
FINANCIAL & PROPERTY MATTERS © CIDNY 2011, Article 17A Guardianship25
What is a limited guardian? A person appointed by the Court to receive, manage, disburse and account for property that are not wages or earnings of the person with a disability. © CIDNY 2011, Article 17A Guardianship26
What authority does a person with a disability have over their wages and earnings? S/he has the right to receive and spend any and all wages and earnings from her/his employment; S/he has the power to contract or legally bind her/himself for up to one month’s earnings or three hundred dollars – whichever is greater – or more if the Court authorizes more. © CIDNY 2011, Article 17A Guardianship27
STAND-BY GUARDIANSHIP © CIDNY 2011, Article 17A Guardianship28
What is a stand-by guardian? A person chosen to succeed the guardian if the guardian dies, becomes incapacitated, or renounces the guardianship. © CIDNY 2011, Article 17A Guardianship29
When does the stand-by guardian have to assume her/his role? A stand-by guardian can immediately take the role of guardian if: the guardian dies, The guardian renunciates the role, or If the guardian is incapacitated. However, s/he has sixty days after assuming guardianship to seek confirmation from the court. © CIDNY 2011, Article 17A Guardianship30
SOME IMPORTANT INFORMATION © CIDNY 2011, Article 17A Guardianship31
How long does a guardianship last? Until the death of the person under guardianship; or Until the guardianship is discharged through Court action. © CIDNY 2011, Article 17A Guardianship32
Does a change in legal status end the guardianship? No. Only a court decision can end a guardianship of a person with a disability. The guardianship does not end when the person with the disability reaches the age of majority or marries. © CIDNY 2011, Article 17A Guardianship33
How much authority does the judge have? Among other things, a judge can: Waive court fees; Ask for background checks; Ask for fingerprinting; Narrow or broaden financial authority; Make a final rule, based on evidence, on end of life decisions. © CIDNY 2011, Article 17A Guardianship34
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