Guardianship proceedings in New York are governed by the provisions of Article 81 of the Mental Hygiene Law (“MHL”). Earlier posts in the New York Probate Lawyer Blog have discussed many of the aspects of guardianship for incapacitated persons (“IP”). For example, the statute provides for the appointment of a guardian for personal needs and a guardian for property management. Typically, when the Court appoints a guardian, the same individual will act in both capacities. However, there are instances when the Court will name different persons to serve in these capacities. This may occur when it is determined that a family member is best suited to make personal decisions for the incapacitated person but that someone else is more qualified to handle the IP’s financial affairs.
As discussed in earlier posts, the Court will conduct a hearing to determine whether any appointment is necessary. In many instances, the alleged incapacitated person (“AIP”) will have prepared and signed advanced directives prior to the commencement of the proceedings. Such advanced directives would include a Power of Attorney and Health Care Proxy. Generally the existence of these directives may constitute available resources that might be sufficient so as to preclude the necessity for a guardianship.