New York Guardianship Requires Court Approval to Transfer Assets of Incapacitated Persons

Incapacity due to sudden illness or the effects of dementia and Alzheimers disease often results in the appointment of a Guardian under New York Mental Hygiene Law (“MHL”) Article 81. The preparation of advanced directives such as a Durable Power of Attorney and Health Care Proxy may avoid such proceedings.

Once a Guardian of a person’s property and/or personal needs is appointed by the Court, the Guardian’s powers are usually set forth in the Court Order/Judgment that makes the appointment. MHL section 81.21 provides for property management powers and MHL section 81.22 provides for personal needs powers.

It is common for an incapacitated person (“IP”) to own a home such as a single family house or a cooperative or condominium apartment. Typically, the Court Order which specifies the Guardian’s fiduciary powers will provide that the Guardian is prohibited from selling the IP’s home without further Court approval. New York Real Property Actions and Proceedings Law article 17 provides a detailed procedure for a Court approved sale of real property which usually involves an appraisal of the property and public advertising. The apparent goal of the law is aimed at insuring that a fair price is obtained for the property.

I have represented many clients in connection with Petitions for the Appointment of a Guardian and the Guardian’s obtaining Court approval for the sale of real estate.

A recent case decided by the Honorable Alexander W. Hunter in Bronx Supreme Court on September 27, 2011 and reported in the New York Law Journal on October 14, 2011 entitled Matter of the Petition of M.H., shows some of the problems that can arise in these proceedings.

In M.H., title to a residential house was in the name of the IP’s granddaughter (M.R.) subject to a life estate interest owned by the IP. The IP was 91 years of age and lived in a nursing home. The granddaughter wanted to sell the house and it was proposed to the Court that the life estate interest be transferred to the granddaughter who would then sell the house and give the Guardian an amount equal to the value of the IP’s life estate interest.

The Court, however, did not approve the transaction for a number of reasons, including that there was no explanation as to why the life estate needed to be transferred to the granddaughter rather than sold by the Guardian as part of the transaction. The Court was also concerned about whether the granddaughter would pay the IP’s share of the proceeds over to the Guardian after the sale.

M.H. is interesting because it shows the necessity of consulting with a good New York Guardianship attorney concerning the many complex issues that can arise in Guardianship cases. Although M.H. involved a Bronx Guardianship, the need to review all aspects of Guardianship Court proceedings is imperative no matter where the proceedings are held in New York.

New York Guardianship Attorney Jules Martin Haas, Esq. has been representing clients in Guardianship matters in New York including Manhattan, Queens and Brooklyn throughout the past 30 years. If you or someone you know is involved with or has questions about Guardianship, please contact me at (212) 355-2575 or email:, for an initial consultation.

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