The Legal Nuances of SCPA Article 17-A Guardianship

Aug 25, 2022
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By: Dana Walsh Sivak, Esq.

As parents of children with developmental or intellectual disabilities approach the age of 18, these parents often worry about what adulthood will mean for their child, and how they can continue to ensure that their child remains safe, well cared for, and continues to receive services designed to enhance their life and achieve personal growth to the greatest extent possible.  However, once a child is legally an adult, the concept of “parental rights” falls by the wayside, and, for all intents and purposes, a parent ceases to have any legal decision-making authority over their child, and lacks the legal ability to assist their children in many important ways.

The practical and legal solution to this predicament is SCPA Article 17-A guardianship.  This unique form of guardianship permits parents of developmentally or intellectually disabled children to essentially carry on the same activities they have undertaken for their child’s benefit throughout their childhood, in a relatively straightforward and painless process. In recognition of the fact that many of these children are unable to assume the responsibility of managing their own needs once they reach adulthood, SCPA Article 17-A guardianship allows parents to exercise legal authority to make decisions for their children, without constant monitoring and intrusion by the court system.

Plenary Powers Granted Under Article 17-A

SCPA Article 17-A is a “plenary” guardianship, which means that a guardian empowered under this statute has broad, comprehensive powers designed to enable parents to fully address all of their child’s needs on an ongoing basis. However, in certain cases, the plenary nature of this guardianship can be a double-edged sword. While the relative ease of obtaining Article 17-A guardianship is a clear advantage for well-meaning parents, there is also a lack of monitoring and judicial oversight which one would find in other types of guardianships (most commonly, Mental Hygiene Law Article 81 guardianships), creating an opportunity for unchecked power and potential abuse of authority by the guardian.  In cases of divorce or acrimony among parents of an intellectually or developmentally disabled adult, for example, a difference in opinion between the guardian and the other (non-guardian) parent regarding how the adult child should live his or her life can lead to familial disputes, and even protracted and costly litigation.

Even innocently, parents who are used to providing for their child into his or her adulthood may unconsciously infantilize their adult child, impeding their child’s ability to experience opportunities for personal growth and independence. Simply put, many parents who are so used to providing basic necessities for their child and advocating for them since infancy may simply not recognize their child’s adulthood, and may fail to treat them as adults, or afford them independence, to the greatest extent possible.

Article 81 of the Mental Hygiene Law

Mental Hygiene Law Article 81 guardianships, on the other hand, exist for a different purpose – to appoint guardians for individuals who are at risk of harm who previously had capacity to make their own decisions, but due to advanced age, illness or injury, no longer has the capacity to make their own decisions and provide for their own well-being. In MHL Article 81 guardianships, guardians are tasked with applying “substituted judgment” for the benefit of the incapacitated person, making decisions based upon what the guardian believes the individual would have made, if they still had the capacity to do so. Whether “substituted judgment” may be appropriately utilized in the Article 17-A guardianship landscape, where the developmentally disabled or intellectually disabled individuals who are the subject of these proceedings are presumed to have never had capacity in the first place, remains a matter of debate before the courts, without a clear consensus having yet been reached on whether “substituted judgment” is actually available under Article 17-A. Under the interpretation of the Article 17-A statute which prevents the application of “substituted judgment” in these guardianships, which is more commonly adopted in these cases, guardians are tasked with making decisions that are deemed in the “best interests” of their ward.

Article 17-A Guardianships vs. Article 81 Guardianships

Unlike Article 17-A guardianships, MHL Article 81 guardianships require a great deal of monitoring and judicial oversight, including the filing of initial and annual reports, completion of a training course, maintaining an accounting of all expenditures made for the incapacitated person, and securing the court’s prior permission to do certain things concerning the incapacitated person (such as moving their ward’s place of abode, selling their property, or making end-of-life health care decisions, if the order requires the court’s approval). While these requirements and limitations can be tedious and time-consuming, they also provide the checks-and-balances that, in some cases, may be necessary to ensure an individual’s self-determination and independence are respected, and to mitigate the risk of potential abuse of authority. Additionally, since Article 81 guardianships are to constitute the “least restrictive means of intervention” to ensure that the incapacitated individual’s personal and property management needs are met, unlike the plenary Article 17-A guardianship, an Article 81 guardian’s powers are narrowly tailored to meet the needs of the incapacitated person.


For these reasons, in certain circumstances, a parent may choose to pursue an MHL Article 81 guardianship for their child, rather than an Article 17-A guardianship – but because an Article 81 guardianship must be “necessary” to provide for the needs of the individual in order for the court to intervene, the mere existence of a functioning Article 17-A guardianship may lead the court to deny a petition for Article 81 guardianship.  In general, however, the decision of whether to pursue an SCPA Article 17-A guardianship or an MHL Article 81 guardianship is based on a number of factors, all of which must be analyzed on a case-by-case basis.  In all cases, it is imperative that an individual’s functional abilities and the needs of the individual are the primary consideration when making such a determination, and that these factors guide both the petitioner(s) and the court in making an appropriate decision regarding guardianship.

The original article on this topic, “The Legal Nuances of SCPA Article 17-A Guardianships” co-authored by Dana Walsh Sivak, Esq., published in the New York State Bar Association Elder Law and Special Needs Journal, may be viewed here.  Dana Walsh Sivak, Esq. is Senior Counsel in Falcon Rappaport & Berkman LLP’s Elder Law, Litigation and Cannabis practice groups and may be reached (516) 599-0888 or at

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Falcon Rappaport & Berkman LLP is proud to serve the community in assisting with the legal complexities involving guardianship matters. Our skilled guardianship attorneys work closely with our clients to develop practical legal solutions in securing the guardianship of an incapacitated adult.

DISCLAIMER: This summary is not legal advice and does not create any attorney-client relationship. This summary does not provide a definitive legal opinion for any factual situation. Before the firm can provide legal advice or opinion to any person or entity, the specific facts at issue must be reviewed by the firm. Before an attorney-client relationship is formed, the firm must have a signed engagement letter with a client setting forth the Firm’s scope and terms of representation. The information contained herein is based upon the law at the time of publication.

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