The statutes concerning the appointment of a New York Guardian for a person who is incapacitated are located in Article 81 of the Mental Hygiene Law (MHL). There have been many articles posted concerning the law of guardianship in the New York Probate Lawyer Blog.
A Guardianship case is commenced by the preparation and filing of a proposed Order to Show Cause to be signed by the Court. Once it is signed, the Order to Show Cause will contain many items of information regarding the proposed guardianship hearing including the date upon which the hearing will be held, information regarding the appointed Court Evaluator and any court appointed attorney for the alleged incapacitated person (“AIP”). MHL Section 81.07 entitled “Notice” provides the form and many of items of information that need to be a part of the Order to Show Cause. The Order, when completed and signed by the Court, will then be served on the various parties who are interested in the proceeding or are otherwise specified in the Order as being entitled to receive a copy. If the Order to Show Cause and other papers are not properly served in accordance with the direction of the Court, the guardianship case cannot proceed.With regard to determining the persons who are entitled to receive notice regarding the proceedings, MHL 81.07(g)(i) lists the relationship of persons to the AIP who are entitled to notice. For example, the AIP’s spouse, parent and adult children and adult siblings are listed in the statute. Thus, these persons in the order of priority must receive notice of the proceedings and are entitled to participate in the Guardianship Proceeding. When proper notice is not given or interested parties rights are interfered with there cannot be a valid guardianship determination.
Recently, the New York Appellate Division, 4th Dept., had occasion to review a guardianship decision issued by the Surrogate’s Court, Monroe County. In Matter of Azzi, decided on July 8, 2016, the Appellate Court reversed the Surrogate’s Court decision appointing a guardian of the property of the AIP. In Azzi one of the AIP’s siblings commenced the guardianship case. Other siblings of the AIP opposed the proceeding and filed a cross-petition in opposition. All the siblings had been named in the original petition as interested parties. After review, the Surrogate’s Court dismissed the cross-petition and held that the cross-petitioners did not have standing to participate in the guardianship case. On Appeal, the appellate count reversed the dismissal and found that the cross-petitioner’s siblings were proper parties and entitled to participate in the case.
I have represented many individuals in Guardianship Proceedings. It is very important when the petition is prepared that all of the necessary and interested parties are listed with full and correct information as to their status and addresses. If all of the necessary parties are not included in the Court case, it may not be possible to commence or conclude the Guardianship Hearing and to have a guardian appointed for property management or personal needs. If you have a question or concern regarding a New York Guardianship, please call me now for a free discussion.
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 and Nassau Counties. If you or someone you know is involved with or has questions about a New York Guardianship matter, please contact me at (212) 355-2575 or email: email@example.com, for an initial consultation.
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