Article 81 of the Mental Hygiene Law (MHL) contains the provisions regarding the appointment of a Guardian. A Guardian can be appointed for personal needs and also for property management. Generally, according to MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment”, a Guardian is appointed after the Court determines that the alleged incapacitated person is incapacitated. There needs to be clear and convincing evidence which includes a determination that the person is likely to suffer harm and that they do not appreciate or understand the nature of the disability that affects them.
I have represented individuals in many Guardianship cases throughout New York. As a Guardianship lawyer, I am aware that a Court will want to see the extent to which a person can handle their activities of daily living such as personal health and care matters and financial transactions. The New York Probate Lawyer Blog contains numerous posts regarding Guardianship issues.
One interesting aspect of Article 81 is Section 81.29 entitled “Effect of the appointment on the incapacitated person”. Among this statute’s provisions is the authority for the Court to revoke, modify or amend any power of attorney, health care proxy, contract or conveyance made by a person found to be incapacitated. By utilizing this provision, a Court is able to rectify transfers or delegations of authority made by a person who did not have the capacity to enter into the transaction at the time. This provides an additional layer of protection for individuals and forestalls abuse.
A recent Guardianship case which occurred in Nassau County entitled Matter of Application of Nunziata, resulted in the Court revoking a power of attorney and health care proxy signed by a person who was determined to be incapacitated at the time. Additionally, the Court also ruled that a marriage that was entered into by the incapacitated person was void, since the person at the time of the marriage was unable to understand the effect, consequences and nature of the marriage decision.
I have represented clients in matters involving the revocation of advance directives and also the annulment or voiding of a marriage. As can be seen, Guardianship cases in New York can be very complicated and obtaining the assistance of experienced counsel can be essential. Guardianship matters can involve many different parties including petitioners, cross-petitioners, Court evaluators, and Court-appointed counsel for the alleged incapacitated person. Cases are commenced by Order to Show Cause and a Verified Petition.
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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.