Article 81 of the Mental Hygiene Law (“MHL”) is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management”. The New York Probate Lawyer Blog has posted many discussions regarding the process of having a Guardian appointed for an incapacitated person.
The statute provides that the Court may only appoint a Guardian after the Court has conducted a hearing (MHL §81.11). At the hearing, the parties can “present evidence” “call witnesses”, “cross examine witnesses” and be represented by an attorney. Also, the statute requires that the Court hearing take place in the presence of the person who is alleged to be incapacitated. The most essential element in the Guardianship case is typically whether a person is incapacitated. Incapacity is defined in MHL § 81.02 which sets out the basic criteria for a Guardianship appointment.As with many legal determinations, it is not uncommon for parties to engage in a contest regarding the Guardianship proceeding. Contested Guardianship cases can involve the alleged incapacitated person (“AIP”) opposing the appointment of a Guardian or a third party, such as a child, either opposing the appointment of a Guardian or contesting who should be the proper person to be appointed. In all such situations the Court will hold a hearing, hear the evidence and make a decision.
I have represented many clients in Guardianship cases involving questions of incapacity and disputes between persons competing for appointment as Guardian. A recent case entitled Matter of Giaimo decided by Brooklyn Supreme Court Justice Kathy King on July 29, 2015 provides a good roadmap as to the lengthy and complicated litigation that can be involved in a Guardianship controversy.
In Giaimo there were competing petitions for the appointment of a Guardian. One petition was filed by the AIP’s daughter and son-in-law. A cross-petition was filed by the AIP’s brother. As is common in many cases, the proceedings were begun after an investigation was started by Adult Protective Services (“APS”). In New York City, the Adult Protective Service Program is a government program that provides help for persons that are physically or mentally impaired. APS typically assigns a caseworker to each situation who visits with the AIP to access the situation.
The proceedings in Giaimo lasted more than 5 months and involved nine in court proceedings and a hearing that took place at the home of the AIP. During the course of this time the Court appointed a third party temporary guardian and heard the testimony of many witnesses including the APS caseworker and registered nurse.
Court ultimately found that the AIP was incapacitated. However, the Court did not appoint either the petitioner or cross-petitioner as Guardian. Instead, the Court appointed an independent Guardian due to the conflict between the parties. The Court also revoked a Health Care Proxy that it found was executed at a time when the AIP lacked the capacity to sign such document.
As can be seen from Giaimo, Guardianship cases can be very complex. The assistance of an experienced Guardianship lawyer can be very helpful in determining the manner by which a person can seek and obtain Guardianship of a family member or friend. If you have any questions or issues that concern Guardianship proceedings, please call me now for a free consultation and review.
New York Guardianship Attorney Jules Martin Haas, Esq. has been representing clients in New York Guardianship Proceedings throughout the past 30 years in New York, including Queens Guardianship and Nassau Guardianship. If you or someone you know is involved with or has questions about a New York Guardianship, please contact me at (212) 355-2575 or email: firstname.lastname@example.org, for an initial consultation.
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