Articles Posted in Guardianships

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Article 81 of the Mental Hygiene Law (“MHL”) is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management”. The New York Probate Lawyer Blog has posted many discussions regarding the process of having a Guardian appointed for an incapacitated person.

The statute provides that the Court may only appoint a Guardian after the Court has conducted a hearing (MHL §81.11). At the hearing, the parties can “present evidence” “call witnesses”, “cross examine witnesses” and be represented by an attorney. Also, the statute requires that the Court hearing take place in the presence of the person who is alleged to be incapacitated. The most essential element in the Guardianship case is typically whether a person is incapacitated. Incapacity is defined in MHL § 81.02 which sets out the basic criteria for a Guardianship appointment. Continue reading →

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A New York Guardianship Proceeding is commenced by the filing of a petition.  Mental Hygiene Law (MHL) Section 81.08 sets forth the requirements of the petition.  MHL Section 81.06 designates the persons who may file the proceeding which includes family members as well as any other person who has concerns regarding the alleged incapacitated person (AIP).  The New York Probate Lawyer Blog has described the Guardianship process in numerous earlier posts.

It is very common that Guardianship proceedings involve litigation where family members compete for appointment so that they can control the finances and personal needs of the AIP. Continue reading →

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Article 81 of the Mental Hygiene Law (MHL) contains the provisions regarding the appointment of a Guardian for property management and personal needs for a person who is found to be incapacitated.  The New York Probate Lawyer Blog has discussed in earlier posts the procedure to obtain the appointment of a Guardian.  Typically the proceeding is commenced by the filing of a petition with the Court along with a proposed Order to Show Cause.  MHL Section 81.08 sets forth the information to be included in the petition.  This information includes the name and address of the alleged incapacitated person’s (AIP) closest next of kin who are also given notice regarding the commencement of the Court case.

In some cases, a relative or other interested person may file a cross-petition with the Court in which they oppose the appointment of a Guardian or ask the Court to appoint the cross-petitioner as the Guardian rather than the original petitioner. Continue reading →

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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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