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 →