A New York Guardianship proceeding under Article 81 of the Mental Hygiene Law (“MHL”) typically requires that the Court find the alleged incapacitated person (“AIP”) to be incapacitated. The focus of the Court is on the functional abilities of the AIP and the manner in which the AIP can handle activities of daily living without assistance. These activities include the ability to feed oneself or handle necessary personal hygiene.
The Guardianship Court will also focus upon whether a person has advanced directives or alternative means by which to accommodate a disability. For example, as part of the creation of an Estate Plan, a person may have put into place a Power of Attorney, a Living Will, a Health Care Proxy or a Living Trust. These papers provide a means by which a person can have their personal needs and property management attended to after they no longer have the capacity to do so by themselves. There may also be situations where caretakers such as family members or nursing professionals may be in place to care for and monitor a person’s ongoing needs despite an apparent disability. Continue reading →