Much of the current focus on Article 17-A involves the constitutional rights of the alleged incapacitated person (AIP). This article highlights a different concern: when the AIP is clearly in need of a guardian and fits the parameters set forth in Article 17-A, but the proposed guardian may not be suitable or appropriate to act as guardian for a multitude of reasons. For example, the parents of an adult AIP may be divorced, but both want to be named as co-guardians and the rights of each co-guardian must be detailed. Or, the proposed guardian may make appropriate decisions regarding medical care for the AIP, but there are concerns about what the proposed guardian deems to be a safe and appropriate living environment.
While there are some courts that believe an Article 17-A guardianship can be granted with additional restrictions, other courts have ruled that Article 81 is a more appropriate vehicle for tailoring a guardianship. However, under either statute the problem remains that there may be a need for additional monitoring or restrictions upon the guardian in order to protect the AIP. We submit that there are practical ways to tailor an Article 17-A guardianship in these circumstances.
