Incapacitated Adopted Parents and Subsidy

New York State (NYS) law permits the transfer of an adoption subsidy when an adoptive parent dies (the legal guardian of the child then receives the subsidy or if the child is over the age of 18, the child may receive the subsidy directly).  When an adoptive parent is incapacitated on a long-term basis, the situation is more complicated.  Here are some suggestions to prevent or resolve the problem:

Before or at the adoption finalization:

All parents should have wills to make sure their children are cared for in the event of their death.  All parents should also have a power of attorney appointing a standby guardian who will care for their children and receive the subsidy in the event that they are incapacitated.  (The New York State Bar Association has forms you can use for free on their website.

It is not a good idea to have one friend/family member be in charge of the subsidy and another in charge of your children.  The subsidy should go directly to the person caring for the children.  Note:  It is not necessary to have a lawyer to implement a power of attorney and it can be changed as often as necessary.

Single parents can also consider adopting jointly with someone they are close to and both adoptive parents would have equal rights and responsibilities to the child.  For example, a mother might adopt a child jointly with her grown daughter.  In this situation, if the mother were incapacitated, the subsidy could flow directly to the daughter with a simple change of address.

Note:  Back up guardians, designation of which are sometimes required by court have no legal standing.  It is merely a promise with no legal obligation.

After adoption:

A caregiver can seek a court order for child support.  The judge could order the person responsible for the adoptive parent’s financial affairs to pay child support.  In some circumstances, the judge can also order the local social services district to implement a change in payee so that the subsidy would flow directly to the child’s caregiver.

Note:  These remedies only apply to adoption and not to KinGAP.  If a kinship guardian dies, the KinGAP payment is not transferrable. Find better link to KinGap. York

Who Can Nominate a Standby Guardian:

A parent, legal guardian, or legal custodian may petition for the appointment of a standby guardian. The child’s primary caretaker may petition when the parent, guardian, or custodian cannot be located.  Citation: Surrogate’s Crt. Proc. Act § 1726

How to Establish a Standby Guardian:

The petition must state:

  • Whether the authority of the standby guardian is to become effective upon the petitioner’s incapacity, death, or consent, whichever occurs first
  • That the petitioner suffers from either a progressively chronic illness or an irreversibly fatal illness, and the basis for such statement, such as the date and source of a medical diagnosis, without requiring the identification of the illness in question

If the court finds that the petitioner suffers from a progressively chronic illness or an irreversibly fatal illness and that the interests of the child will be promoted by the appointment of a standby guardian, it must make a decree accordingly.

A standby guardian may also be designated by a written designation, signed by the parent in the presence of two witnesses. An optional designation form is provided in the statute. The court will consider the preference of a child who is age 14 or older. If the youth is older than age 18, he or she shall consent to the appointment of a suitable guardian. 

Citation: Surrogate’s Crt. Proc. Act §§ 1726; 1706

How Standby Authority is Activated:

The standby guardian’s authority commences upon receipt of a determination of the parent’s incapacity, certificate of the parent’s death, or the parent’s written consent. An attending physician must document the parent’s incapacity.

A guardian by judicial decree has 90 days to file confirming documents. A guardian by written designation has 60 days to file confirming documents and petition for appointment. Citation: Surrogate’s Crt. Proc. Act § 1726

Involvement of the Noncustodial ParentCitation:

Notice of hearing is required to any parent living in a known residence in New York, unless the parent has abandoned the child, is deprived of civil rights, divorced from the custodial parent, incompetent, or otherwise judicially deprived of custody of the child. Citation: Surrogate’s Crt. Proc. Act § 1705

Authority Relationship of the Parent and the Standby:

The commencement of the standby guardian’s authority due to incapacity, debilitation, or consent shall not divest the parent of any parental rights, but shall confer upon the standby guardian concurrent authority with respect to the child. Citation: Surrogate’s Crt. Proc. Act § 1726

Withdrawing Guardianship:

The petitioner may revoke a standby guardianship created by judicial appointment by executing a written revocation, filing it with the court that issued the decree, and promptly notifying the standby guardian of the revocation.

A judicially appointed standby guardian may at any time before the commencement of his or her authority renounce the appointment by executing a written renunciation and filing it with the court that issued the decree, and promptly notifying the petitioner of the revocation. Citation: Surrogate’s Crt. Proc. Act § 1726

The parent may revoke a standby guardianship created by written designation:

  • By executing a subsequent designation of guardianship by petition to the court
  • In the case of a standby guardian whose authority becomes effective upon the death of the parent, by a subsequent designation of standby guardian set forth in a will of the parent
  • By notifying the standby guardian verbally or in writing or by any other act evidencing a specific intent to revoke the standby guardianship prior to the filing of a petition

Source:  Sarah Gerstenzang, Michael Neff, Dale Rosenberg, Jaron Ben Shalom, and Jana Leonard on behalf of the Adoption Action Network  March 2012

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