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A Family Member is Usually the Best Guardian – But Not Always

Guardianship-300x201Article 81 of the Mental Hygiene Law contains the provisions regarding the appointment of a Guardian.  As discussed in many earlier posts in the New York Probate Lawyer Blog, the statutes provide for the appointment of a property management Guardian and also for a personal needs Guardian.

When an application is made to a Court for a Guardianship appointment, the Court is provided with a proposed Order to Show Cause and a verified petition.  The information which is to be included in the petition is described in MHL 81.08.  This information includes details concerning both the alleged incapacitated person and the petitioner.  Also, the name, address and telephone number of any proposed Guardian should be supplied along with reasons why the proposed designee is suitable to act as Guardian.

The primary function of the Court in these matters is first and foremost to determine whether the AIP is incapacitated.  Clear and convincing evidence is needed to show incapacity.  MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” provides the guidance for these issues.  Typically, a person’s functionality and ability to handle activities of daily living are closely examined.

Once a determination is made as to the necessity for a Guardian, the Court will examine the issue as to who should be appointed as Guardian.  While the Courts and the Guardianship law typically focus on the appointment of a family member, the Court will fully examine the situation.  The Court wants to be certain that a family member is both qualified and appropriate.  A family member may not be financially suitable due to personal issues such as a prior bankruptcy or credit matters.  Since a surety bond may be needed, the bonding companies are reluctant to issue a bond to someone with a poor credit history.  Also, the family member may have a conflict of interest.

A recent Suffolk County Guardianship case entitled Matter of Gomes, decided by Suffolk Supreme Court Acting Justice Chris Ann Kelley on September 27, 2022, concerned the issue of appointment of a family member.  In Gomes, the husband of the AIP commenced the proceeding.  After a review of the evidence, the Court found that the AIP needed to have a Guardian appointed.  However, there were serious issues presented as to whether the husband was an appropriate appointee.  A significant amount of evidence showed that the husband had physically abused his wife (the AIP) and was negligent regarding her care.  The Court recognized the preference by the Courts to appoint family members.  However, based upon the husband’s past conduct, he was determined to be unsuitable for the appointment.  Instead, the Court appointed a professional Guardian to be the Guardian of the person and property of the AIP.

I have represented clients in Guardianship cases for over forty (40) years.  Sometimes these cases can be very contentious with family members or other persons competing for appointment as Guardian.  In other matters, there may be issues as to whether advance directives such as a Health Care Proxy or Power of Attorney override the need for a Guardian.

Do you have a Guardianship question?  Call Me Now for a free confidential review.  We offer reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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