New York Article 81 Guardians Face Complex Issues

The New York Probate Lawyer Blog has discussed many issues concerning New York Article 81 Guardianship proceedings. These issues included the appointment process for a Guardian and the powers that are given to a Guardian by the Court.

Section 81.02 of the Mental Hygiene Law (MHL) provides that the Court may appoint a Guardian with regard to an individual’s personal needs and/or property management. Once appointed, the Guardian faces an array of issues in carrying out his or her fiduciary duties and obligations.

Initially, a Guardian must follow the directions and limitations provided by the Court Order appointing the Guardian. MHL Section 81.20(a)1 provides that “a guardian shall exercise only those powers that the guardian is authorized to exercise by Court order.” MHL Section 81.21 provides a detailed list of the powers that a Court “may” give to a property management Guardian and MHL Section 81.22 provides a list of powers that “may” be granted to a Guardian for personal needs. The Court can limit or expand these powers as necessary.

When exercising his or her powers, the Guardian owes a fiduciary responsibility to the incapacitated person. As stated in MHL Section 81.20 (a)(3) “a guardian shall exhibit the utmost degree of trust, loyalty and fidelity in relation to the incapacitated person.”

Since a Guardian is accountable for his or her acts, extreme caution and diligence should be exercised by the Guardian, particularly when faced with difficult or complex situations. These situations arise with regard to both personal needs and property management. Ultimately, a Court may approve or disapprove of the Guardian’s conduct.

An example of a complex issue facing a Guardian regarding the personal needs of an incapacitated person arose in the Matter of Northern Manhattan Nursing Home, decided by Justice Laura Visitacion-Lewis (Supreme Court, New York County) on April 26, 2011 and reported in the New York Law Journal on May 26, 2011. In Northern the incapacitated person was a 92 year old man suffering from terminal cancer, dementia and hypothyroidism. The prognosis was that he would not live for more than 6 months. The Guardian had asked the Court for authorization to withhold consent to the insertion of a feeding tube and treatment for the cancer and to sign Orders of Do Not Resuscitate and Do No Intubate. Following a hearing and a review by the Court concerning the incapacitated person’s end-of-life preferences and the provisions of the New York Family Health Care Decisions Action Section 2994-d(5), the Court granted the Guardian the authority to proceed as it had requested and withhold consent to further treatment and to sign the DNR and DNI.

The Northern case shows the seriousness and complexity of decisions that a Guardian may encounter. Having an experienced New York Guardianship attorney is important to provide a Guardian with guidance in exercising powers and obtaining Court directions and appointment. I have represented many family members and Guardians in these matters.

Unlike Northern, where the Court allowed the Guardian to proceed after a review of a request for authorization, a Court can admonish a Guardian who acts without or outside of his or her authority. This was the situation in Matter of Roy W. Lantigua, Jr. decided by Justice Betsy Barros (Supreme Court, Kings County) on March 31, 2011 and reported in the New York Law Journal on April 22, 2011. In Lantigua, after review, the Court denied a Guardian commissions and surcharged him for improper conduct. Among other things, the Court found the Guardian engaged in self-dealing and conflict of interests and expended guardianship funds improvidently. Thus, the outcome in Lantigua is in striking contrast to that in Northern where the Court pre-approved a proper request for a Guardian to pursue a certain course of conduct.

New York Guardianship attorney, Jules Martin Haas, has helped many clients over the past 30 years resolve issues relating to Guardianship in New York, including Queens and Nassau Counties. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.

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