New York Probate Lawyer Blog

New York Guardianship proceedings can be found to be an appropriate remedy in varied situations. Typically, the Article 81 Guardianship is associated with an elderly person suffering from an illness such as dementia or Alzheimer's disease or a person who has suffered a severe physical event such as a stroke or heart attack. These situations are a garden variety basis for the appointment of a Guardian for property management and personal needs.

New York Guardianship attorneys, however, are familiar with the many other situations in which a Guardian may be needed. For example, in many instances, younger individuals may be incapacitated due to mental or physical disabilities that are birth related. In these situations, a Guardian may be necessitated not only for personal needs but also to handle monetary awards or funds the person may be entitled to due to a settlement from a lawsuit. The Guardianship Court is often asked to allow the establishment of a Supplemental Needs Trust to hold these funds so that the incapacitated person does not lose the benefit of governmental programs such as Social Security Disability or Medicaid.

Many guardianship cases also involve issues relating to the housing of the person who is incapacitated. Such person may live in a rental apartment or even own a cooperative apartment. Due to the person's incapacity, the rent or maintenance due on the apartment may go unpaid and subject the person to possible eviction or termination of their leasehold interest.

Other events that may result in eviction proceedings or lease terminations are where the tenant creates a nuisance by engaging in loud or abusive conduct or exhibits Collyers Syndrome which is the excessive hoarding and accumulation of items in the apartment. These activities create a climate where both the incapacitated individual and other tenants in the building are at risk.

When a person is exhibiting the above described behavior, the building management may commence eviction proceedings or, sometimes, contact Adult Protective Services of the New York City Human Resources Administration to intervene. APS will attempt to provide the tenant with assistance, if possible.

A Manhattan Guardianship lawyer, Queens Guardianship lawyer or Brooklyn Guardianship lawyer who represents a family member attempting to obtain appointment as a Guardian,
can ask the Guardianship Judge to issue a stay or injunction to stop the eviction proceedings of the incapacitated person until a Guardian has been appointed. Such relief is usually granted by the Court.

The New York Probate Lawyer Blog has discussed in previous posts that a Guardian will be appointed by the Court if the Court determines by "clear and convincing evidence" that a person is incapacitated. New York Mental Hygiene Law ("MHL") section 81.02. When a Court is considering the case, it will review the ability of the person to manage activities of daily living such as "money management", "grooming", and "housing". MHL section 81.03 (h). Therefore, when a person fails to pay rent or creates a nuisance or dangerous condition in an apartment, such activity is evidence of incapacity.

I have represented many clients who have petitioned to be Guardians in situations where their friends or relatives are on the verge of eviction or lease termination due to failure to pay rent or creating a nuisance condition. In these cases, quick action and Court filings are often needed to obtain a stay of the eviction and prevent the loss of the incapacitated person's apartment. Once appointed, a Guardian is usually able to pay the back rent or correct the nuisance condition so that the apartment which is the incapacitated person's home can be retained.

Continue reading "New York Article 81 Guardianship Proceedings Can Arise in Housing Proceedings" »

The New York Probate Lawyer Blog has had many posts regarding issues and requirements of an Article 81 Guardianship Proceeding. These proceedings involve a determination as to whether an individual is incapacitated and, if so, the appointment of an appropriate Guardian.

The determinations that are made by the Court involve many different persons which may include the alleged incapacitated person; a petitioner (usually a family member); and a Court Evaluator. In some cases third parties are involved such as a Nursing Home, Adult Protective Services, New York State Mental Hygiene Legal Service and Medicaid.

A Supplemental Needs Trust ("SNT") is often a critical component of the Guardianship process. In a typical situation a person who is incapacitated may be entitled to a large monetary award due to a personal injury action. Since the incapacitated person would also qualify for government benefits such as Medicaid and SSI, the SNT provides a means by which the monetary funds can be set aside for extra benefits without the loss of the governmental entitlements. In the Guardianship proceeding, the Court authorizes the Guardian to establish the SNT and to transfer the funds into the Trust thus avoiding any loss of benefits. The SNT trustees, who are also designated by the Court, then administer the trust for the benefit of the disabled person. The trustees selected are commonly the family members who are the Guardians.

Once the SNT is established, the trustees can make expenditures for such things as computers, vacations, extra care and other items which the governmental benefits do not pay for without losing the governmental coverage for other items such as medical care. A good explanation of this process is provided in a recent case decided by Justice Howard H. Sherman on April 19, 2012 and reported in the New York Law Journal on May 14, 2012 entitled Matter of Geraldine R. In this case the Department of Social Services (Medicaid) claimed that the Supplemental Needs Trust trustees did not need to obtain prior Court approval to pay for items such as a vacation, purchase of a computer, printer and television, and educational programs. The Court found that it had authority to approve these items prior to the expenditure.

In fact, it is the usual and appropriate manner for trustees of a SNT to obtain prior Court approval of their expenditures. The trustees can then avoid a later denial by the Court and the requirement that they reimburse the trust for improper expenses.

I have represented many clients in connection with Guardianship proceedings and the establishment of a Supplemental Needs Trust. These cases require a Court hearing and I work closely with my clients and their families to help them through what can be a complex court process.

Continue reading "New York Guardianship Proceedings Also Involve Payments from a Supplemental Needs Trust" »