New York Advance Directives Can Avoid The Appointment of a Guardian

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.

Unfortunately, the creation of advance directives does not always prevent Guardianship litigation. Occasionally, a person’s appointed agent in a Power of Attorney or Health Care Proxy does not act in a responsible manner or abuses their authority and takes advantage of an individual after the individual becomes disabled. In these instances a Guardianship proceeding can be useful to review the situation and a Judge has the authority to revoke a Power of Attorney or Health Care Proxy (MHL 81.29).

Sometimes even though advance directives are in place, a disgruntled family member may commence a Guardianship proceeding and seek to have a power of attorney and health care proxy revoked. In a recent case decided by Suffolk Supreme Court Justice H. Patrick Leis, III on August 6, 2014 entitled Matter of Carl R.P., Jr., the alleged incapacitated person (“AIP”) had named her daughter as her agent under a power of attorney. One of the AIP’s son’s commenced a Guardianship proceeding and claimed that the power of attorney should be revoked since the daughter was not utilizing the power to prevent their mother from spending her own money. The Court found that the mother had sufficient capacity and understanding to make her own decisions regarding her expenditures and that there were valid advance directives, such as the power of attorney, in place. Therefore, the Court denied the brother’s petition.

I have represented many clients in contested Guardianship proceedings. I have also prepared advanced directives such as powers of attorney and health care proxies as part of an overall estate plan.

New York City Trusts and Estates Lawyer Jules Martin Haas, Esq. has been representing clients in Probate and Estate Administration proceedings throughout the past 30 years. He is available to help residents in many areas, including Brooklyn and New York counties. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation or e-mail me at

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