Articles Posted in Guardianships

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The New York Probate Lawyer Blog contains numerous posts regarding Article 81 Guardianship proceedings. These cases are started when a person files a petition with the Court alleging that an individual is incapacitated and needs the appointment of a Guardian to assist with the individual’s affairs. Typically, the petition seeks the appointment of a Guardian for personal needs and for property management for the alleged incapacitated person (“AIP”).

Since determining that a person is incapacitated and requires the appointment of a Guardian is a significant deprivation of a person’s individual freedom, the Courts are very diligent to make sure that the interests of the AIP are fully understood and protected. In most Guardianship cases the Court will appoint a Court Evaluator to investigate the issues concerning the petition and to prepare a report for the Court to review. Sometimes the Court will also appoint an attorney to represent the AIP in the case. Continue reading →

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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.

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The New York Guardianship Law is contained in Article 81 of the Mental Hygiene Law (“MHL”). As discussed in numerous posts in the New York Probate Lawyer Blog, a Court will appoint a Guardian for an individual’s property management and personal needs if it determines that the person is incapacitated. The Guardianship law serves a very useful purpose in providing a process by which family members or others concerned about someone’s well-being can obtain assistance from the Court to protect a person who is unable to care for themself. There are many situations that can result in an incapacity such as an accident or an illness in the form of a stroke, heart attack or similar occurrence. Incapacity may also result from the onset of Alzheimer’s disease or dementia.

As noted in earlier posts, proper estate planning, which includes the use of advance directives such as a Power of Attorney, Health Care Proxy, Living Will and Living Trust, may avoid the need for a Court appointed Guardian. These advance directives allow a person to select their agents and representatives who are to have the authority to make property management and health care decisions without the need for a Guardianship proceeding and the appointment of a Guardian who may not have been a person’s first choice to handle his affairs. Continue reading →

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New York Guardianship cases, like those in other states, control issues regarding persons who are incapacitated within the jurisdiction of the local State Court. Mental Hygiene Law (“MHL”) 81.05 provides that a Guardianship proceeding shall be commenced in the county where the person alleged to be incapacitated (AIP) resides or is physically located. Generally, if an AIP or a person who has been found to be incapacitated (IP) physically moves to another state, a proceeding in the new state needs to be commenced for a guardianship appointment. Since Guardianship appointment jurisdiction has historically been local, families have faced tremendous hardship and confusion when an AIP or IP moves or is taken from state to state.

The New York Probate Lawyer Blog recently discussed a new law contained in Article 83 of the MHL that allows New York to participate with other states in transferring or accepting out of state guardianships. Thus, under the new law, a New York Court may accept a proceeding for a guardian that is transferred from another state. See MHL 83.33. Continue reading →

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A Guardian appointed under Article 81 of the New York Mental Hygiene Law (“MHL”) has many duties and responsibilities. As discussed in earlier posts in the New York Probate Lawyer Blog, an appointment can be for a Property Management Guardian and for a Personal Needs Guardian. Property Management guardian powers are set forth in MHL Section 81.21 and the personal needs powers are found in MHL Section 81.22.

Generally, when an incapacitated person dies, the authority of a Guardian ends. However, the administration responsibilities of a Guardian may continue in many forms depending upon the circumstances of the Guardianship.   MHL Section 81.44 entitled “Proceedings upon the death of incapacitated person” sets out a number of rules. According to the statute a “statement of death” must be sent by the Guardian to the Court Examiner and to the estate personal representative. This representative would be an Executor or Administrator. Additionally, the Guardian must file a final account with the Court within 150 days after the death of the incapacitated person. Continue reading →

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The New York Probate Lawyer Blog has had previous posts concerning the issue of elder abuse.  A recent survey released by the National Association of Professional Geriatric Care Managers reported that the financial exploitation of the elderly is a growing and ongoing problem.  The survey found that the top areas of abuse included theft of money and property by family, friends, neighbors and care-givers.  Also, using deception to obtain the signature of the senior on a deed, a Will or power of attorney was a top form of abuse.

A New York Guardianship Lawyer is familiar with the provisions of Article 81 of the Mental Hygiene Law (MHL) that can help to protect an older person from being taken advantage of.  MHL Section 81.29 allows a Court to void a deed, a power of attorney, a trust or health care proxy if the Court finds that a person did not have the required capacity to sign these papers.  Additionally, a Guardian of a person’s property has the authority to recover assets that were wrongfully taken from an incapacitated person by commencing a Court action against the wrongdoer.  The Guardianship proceeding allows the Court to make a full review as to whether the alleged incapacitated person is able to adequately protect his rights and whether the individuals who are interacting with the AIP are doing so in a fair and proper manner. Continue reading →

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A New York Guardianship proceeding involves the determination of the capacity of an individual. In order for a Court to appoint a property management Guardian or a personal needs Guardian there must be a finding of incapacity.

Article 81 of the Mental Hygiene Law (“MHL”) provides the statutory provisions for these proceedings. As discussed in previous posts in the New York Probate Lawyer Blog, the case is commenced by the filing of a petition with the Court along with a paper known as an Order to Show Cause. After the Court reviews the petition and finds it to be sufficient to start the case, the Order is then signed. The signed Order contains the date and place for the hearing and the names of persons appointed by the Court as Court Evaluator or attorney for the alleged incapacitated person.

There are a number of fees that are generally associated with Guardianship matters. After a Guardian is appointed, he may be entitled to receive a fee or commissions for carrying out his guardianship obligations. The judgment appointing the Guardian typically sets forth the manner by which such fees are to be computed. The judgment usually provides for fees that are to be paid to other individuals such as the attorney who represented the petitioner and the Court Evaluator or the attorney who represented the incapacitated person. It is common for the Court to direct that these fees be paid out of the assets owned by the incapacitated person.

There are some occasions when the petition for guardianship is denied by the Court or the matter may be discontinued by the agreement of the parties. In these situations the Court has the authority under MHL Section 81.09(f) to direct that the petitioner pay for these fees in addition to the alleged incapacitated person. In a recent Brooklyn Guardianship case entitled “Matter of Brice v. Wilks“, decided by Judge Kathy J. King on February 4, 2014, the Court directed that the petitioner pay the Court Evaluator’s fees after the petition was denied.

It is important for a person considering starting a Guardianship case to consult with a knowledgeable Guardianship attorney who can review the issues that are involved and explain the various fees and costs that may be incurred. Sometimes the facts of a matter may involve a risk that the petitioner could be held responsible for fees that are not otherwise expected.

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Taking advantage of older persons for economic gain is not uncommon. New York Guardianship Lawyers are familiar with many cases where a person who is incapacitated due to a physical or psychological condition is misled and mistreated in order to obtain control of their finances.

Guardianship proceedings under Article 81 of the New York Mental Hygiene Law (“MHL”) often involve situations where a caretaker or close relative or friend misuses their authority through a durable power of attorney or other paper to obtain control or the transfer of a person’s assets. Sometimes these papers include a Last Will that is all of a sudden changed and disinherits the incapacitated person’s family in favor of the wrongdoer. A number of recent blog posts provide examples of this all too frequent occurrence. In a post by Liz Schumer on January 27, 2014 at SpringvilleJournal.com entitled “Elder fraud: one woman’s story, a nationwide epidemic“, the tragic story is told about a Chicago woman who suffered from Alzheimer’s disease. In this case various persons conspired to get a power of attorney and guardianship over the woman and estrange her from her daughter. The post describes how the wrongdoers manipulated the woman and provides an excellent set of circumstances that are indicators of the existence of elder abuse such as large withdrawals from bank accounts, changes in the person’s legal documents such as a Will or Power of Attorney and unusual financial activity that the person would not ordinarily engage in.

Another recent post appearing at OrlandoSentinel.com on February 8, 2014 by Rene Stutzman entitled “Jeno Paulucci heirs fight over $150 million“, describes a recent Court filing that alleges that a multi-millionaire businessman who was 93 years old, legally blind and in intensive care transferred control over most of his $150 million estate from his longtime attorneys to other confidants.

Both the New York Guardianship Courts and the Surrogate’s Courts review cases where relatives claim that they were wrongfully deprived of their inheritance or assets which were improperly taken from their incapacitated next of kin. These Courts have the ability under numerous statutes and case-law to undue the abuse that has occurred by voiding powers of attorney or deeds and bank account transfers or denying probate to a Last Will.

I have represented many individuals in proceedings where elder abuse has occurred and the Court is requested to remedy the situation. Guardianship courts such as the Queens Guardianship Court and Manhattan Guardianship Court are vigilant in protecting senior’s rights and providing a remedy for financial manipulation of a person’s assets.

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The New York Mental Hygiene Law (“MHL”) provides in Article 81 for the appointment of Guardians for personal needs and for property management. MHL Section 81.04 entitled “Jurisdiction” provides that the Court will have the authority to provide relief for someone who is a state resident, or a non-resident that is located in the state or to assist a foreign guardian. MHL Section 81.05 provides that the guardianship proceeding shall be commenced in the county where the alleged incapacitated person resides or is actually present.

Under the present statutes, confusion and controversy often arose when an alleged incapacitated person moved or was taken out of New York to a different state since New York would lose its jurisdiction to determine the need for a Guardian even through the person had lived in New York during his or her life.

Additionally, while New York has its rules regarding Guardianship, other states have their own separate requirements and standards. The appointment of a Guardian in New York would not result in the Guardian having any authority to act in any other state. Therefore, a new guardianship proceeding would need to be commenced if the Guardian wanted to relocate the incapacitated person to another state.

Recently, New York changed its statute to adopt the Uniform Guardianship and Protective Proceedings Jurisdiction Act (“UAGPPJA”). This new law becomes effective in April 2014. The law provides a mechanism by which a state with a priority of contacts with an alleged incapacitated person would have the primary right to determine the need for a guardianship. Guardianship proceedings could be transferred between cooperating states. Also, states that have enacted this law would be able to recognize out-of-state guardianship determinations. This would eliminate the need to bring new proceedings if it was necessary to relocate an incapacitated person for family or health care needs.

Petitions for guardianship can be a complicated process. In many cases assets and family members are located in different states. If there is a dispute among those seeking a guardianship, the simple act of transporting an alleged incapacitated person from one state to another can disrupt the entire process and put the welfare of the disabled person at risk. The enactment of the UAGPPJA should help alleviate these problems.

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The New York Probate Lawyer Blog contains previous posts concerning the benefits of a Supplemental Needs Trust. Briefly, a Supplemental Needs Trust (“SNT”) is a trust that allows assets to be held for the benefit of a person who is receiving governmental benefits such as Medicaid or social security disability. The maintenance of the trust fund will not interfere with or cause these benefits to be discontinued. The SNT trustee can use the trust to provide additional services or care for the SNT beneficiary over and above those provided by Medicaid or Social Security payments. New York Estates, Powers and Trust Law (“EPTL”) Section 7-1.12 provides the statutory provisions required for a trust to be qualified as a SNT.

As discussed previously, there are many situations in which a SNT can be established. For example, a person can establish a SNT in a Last Will to be funded upon death with the trust assets to be utilized for a person who is incapacitated or otherwise receiving governmental benefits. Another situation where a SNT is common is in connection with an Article 81 Guardianship. Instead of holding a person’s funds under the guardianship where the funds may cause Medicaid or other benefits to be discontinued or where the funds may be required to repay Medicaid claims, the assets can be placed in a Court approved SNT. Recently, in a decision by Nassau County Surrogate Edward McCarty III in Property of Alan Frederick Silverman decided on October 29, 2013 and reported in the New York Law Journal on December 16, 2013, the Court allowed the establishment of a SNT. In this case an incapacitated person for whom a guardian was appointed was the recipient of funds from the estate of his father. The guardian was allowed by the Court to create a SNT and to place the estate assets into the trust thus preserving them for the benefit for the incapacitated person.

I have represented numerous clients where a SNT was established in conjuction with the client’s appointment as the guardian of a person’s property and personal needs. Generally, the Courts are very receptive to creating these trusts since they afford incapacitated and disabled individuals the ability to afford services and care above those provided by governmental benefits.

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