New York Probate Lawyer Blog
Guardianship cases in New York are provided for by Article 81 of the Mental Hygiene Law (“MHL”). Article 81 is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management”. As a New York City Guardianship attorney, I have represented many individuals who have filed petitions for Guardianship appointment.
MHL Section 81.02 essentially requires that unless a person agrees to the appointment, the Court must find by clear and convincing evidence that a person is incapacitated. The person against whom the proceeding is brought is called an alleged incapacitated person (AIP). The AIP is entitled to a hearing before the Court can make its decision regarding the need for a Guardian (MHL 81.11).It may take many weeks before an actual hearing can occur after a case is started. Also, even after the proceedings have begun, there may be a period of delay due to a lengthy trial in contested Guardianship cases. Finally, even after a hearing is completed the final Order and Judgment appointing a Guardian may take weeks or months due to the Court administrative procedures required to finalize the Guardianship appointment.
During the periods in which the above extended time frames occur, it may be necessary to immediately have a Guardian appointed to protect the AIP’s assets or provide assistance with health care needs. Fortunately, MHL Section 81.23 entitled “Provisional remedies”, allows the Court to appoint a Temporary Guardian. As provided by the statute, the Temporary Guardian can be appointed when there is a danger to the “health and well being” of the AIP or the “waste, misappropriation, or loss of” property of the AIP.
For example, if an AIP’s property is being improperly taken or used by a third-party, the Temporary Guardian can take steps to prevent such acts. Similarly, if some type of Court proceeding is pending against the AIP like a foreclosure or lawsuit for damages, the Temporary Guardian can step-in and protect the AIP’s interests pending the finalization of the Guardianship process.
The New York Probate Lawyer Blog has published many articles concerning Guardianship proceedings and various issues involved in these cases. I have assisted many clients in Guardianship hearings and the appointment of a Guardian for a close relative or friend. If you have a question or concern regarding a Guardianship case in New York, call me now for a free review and 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: jules.haas@verizon.net, for an initial consultation.