Article 81 of the New York 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 published numerous posts regarding many different aspects of the Guardianship laws.
One of the main requirements for the appointment of a Guardian is that the Court must find that a person is "incapacitated" (MHL Section 81.02). However, the statute also provides that the Court may appoint a Guardian where a person "agrees to the appointment". The vast majority of Guardianship cases typically involve a situation where a person is found to be incapacitated rather than just agreeing to such appointment. In fact, there appears to be sort of an inconsistency between having to declare someone to lack capacity while at the same time allowing them to consent or agree to have a Guardian.
Most recently, Justice H. Patrick Leis, III (Supreme Court, Suffolk County) confronted this issue in Matter of Buffalino which was decided on March 6, 2013 and reported in the New York Law Journal on March 15, 2013. In Buffalino, a person identified as "Mr. D.", who had been suffering with brain cancer, consented to the appointment of a Guardian. At that time, the Court found that Mr. D had the capacity to agree to the appointment. Thereafter, Mental Hygiene Legal Service, on behalf of Mr. D., sought to discharge the Guardian and the Guardian sought to expand his powers and keep the Guardianship in place.
The Court recognized that Article 81 did not clearly define the test to be used to decide whether someone has the capacity to agree to have a Guardian appointed. The Court clearly recognized that determining capacity to consent is not the same as the full review required by a Court hearing to show incapacity and that a finding of capacity to consent does not automatically result in a determination of incapacity.
After reviewing all of the evidence presented, the Court in Buffalino decided that the current Guardian could not demonstrate that Mr. D. required a Guardian and, therefore, discharged the Guardian.
The Buffalino case shows the problems and limitations that may be encountered when a Guardianship is based upon the consent of the person who is disabled. There appears to be an absence of certainty and the long-term ability of the Guardian to act on behalf of the ward. Due to these limitations and the inherent difficulty of determining whether an alleged incapacitated person has at least enough capacity to consent, there are generally few cases where the Guardianship is allowed based upon consent.
Unfortunately, the necessity for a Guardian where a person lacks capacity pervades both the rich and less fortunate. Recent events have been reported concerning Guardianships for film stars Mickey Rooney and Zsa Zsa Gabor. Bill Hetherman reported on March 4, 2013 in the Daily News.com that a probate court judge allowed Mickey Rooney's Conservator to sell his million dollar home. In an article reported in mydesert.com on February 24, 2013, it was reported that a Court extended the Conservatorship over Zsa Zsa Gabor.