Articles Posted in Guardianships

Article 81 of the New York Mental Hygiene Law (MHL) contains the provisions concerning the appointment of a Guardian for an individual.  There are basically two types of Guardians – a Guardian for Personal Needs and a Guardian for Property Management.  The New York Probate Lawyer Blog has published many articles concerning Guardianships in New York.

In short, MHL Section 81.02 provides that a Guardian may be appointed when it is necessary for the personal needs, property management or safety of an individual.  A finding of incapacity based upon clear and convincing evidence is required.  Incapacity means that a person cannot handle personal or property management functions and cannot appreciate or understand the circumstances surrounding such disability.  As a result, the person is at risk of suffering harm.  The Guardianship Court focuses on a person’s ability to handle activities of daily living.

A Guardianship case in New York is started by the filing of a Petition with the Supreme Court typically in the County where the alleged incapacitated person (“AIP”) is located.  The Guardianship Court will set a hearing date to hear testimony from the parties.  Also, the Court may appoint an attorney to represent the AIP at the hearing.  A Court Evaluator may also be appointed to review all of the facts, interview the AIP, the petitioner and other persons who have relevant information.  The Court Evaluator then prepares a report for the Court with recommendations as to whether a Guardian should be appointed, and, if so, who should be appointed.  This process may take at least a few months.  Temporary Guardianship appointments are sometimes granted in appropriate situations.

Article 81 of the New York Mental Hygiene Law contains the provisions for the appointment of a Guardian.  Guardianship can involve an appointment for personal needs such as health care or living environment.  There is also a Guardianship for property management which concerns a person’s financial affairs.  The New York Probate Lawyer Blog contains many posts relating to Guardianships.

As has been discussed in earlier blogs, MHL Section 81.02 provides that a Guardian may be appointed when or if it is found to be necessary for personal needs or property management and that a person is incapacitated.  This means that the alleged incapacitated person (“AIP”) will suffer harm because they cannot understand and appreciate the consequences and nature of their disability.

Many Guardianship cases are relatively uncomplicated in that the AIP is clearly unable to handle his affairs and that a failure to appointed a Guardian would pose a risk to the personal and/or financial needs of the person.  For example, a person who is paralyzed due to a stroke is in need of assistance.  Nevertheless, there are many cases where litigation and conflict arise.  The imposition of a Guardian requires the presentation of clear and convincing evidence (MHL Section 81.02(b)).

New York Guardianship proceedings are controlled by Article 81 of the Mental Hygiene Law (“MHL”) entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management.”  The New York Probate Lawyer Blog has published many articles concerning Guardianship.

The essence of appointing a Guardian concerns a determination that a person is incapacitated.  Incapacity, contrary to its connotation that a person is completely incapable of handling personal needs or property matters, is really a case by case individual determination of abilities.  The inquiry is to examine a person’s functional ability as it relates to handling activities of daily living.  According to MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment,” incapacity needs to be shown by clear and convincing evidence.  There must be a determination that a person will likely suffer harm because they cannot provide for their needs and that the person cannot appreciate and understand the consequences of their disability.

In a typical case, a petition is filed with the Court.  The Court then sets a date for a hearing.  All close family members are given notice as well as other interested parties.  The alleged incapacitated person usually has a Court-appointed attorney and the Court may appoint a Court Evaluator.  The Evaluator reviews the case, interviews parties, and provides the Court with a report and recommendations.

Article 81 of the New York Mental Hygiene Law provides the various statutory provisions for a New York Guardianship.  Typically, the statute is utilized to obtain a guardianship over another person’s financial affairs and personal needs.  The subject of these proceedings is referred to as an alleged incapacitated person (“AIP”).

The procedures set forth in the statute require that a petition be filed.  MHL Section 81.08 entitled “Petition” lists the information which must be contained in the Guardianship petition including a description of the AIPs functional ability.  A key part of the Guardianship law is that a Court will need to be shown the ability of a person to handle various activities of daily living.  These activities include the ability of a person to engage in financial matters and also to handle personal needs such as seeking medical attention, and maintaining a safe and secure living environment.  Basic needs such as cleanliness and personal hygiene are important considerations.  A Guardianship ensures that a person who is functionally incapacitated and at risk is protected from harm.

The Guardianship statute is also very particular that a Court only impose the least restrictive control by a Guardian.  An AIP’s freedom and choice are a paramount consideration for protection by the Court.

The appointment of a Guardian for personal needs or property management is provided for by Article 81 of the Mental Hygiene Law.  This statute contains the numerous provisions regarding the procedure and substantive law for a New York Guardianship.  The New York Probate Lawyer Blog has published many articles regarding Guardianship issues.

As a recap, a Guardianship is appropriate when a person is found to be incapacitated. Incapacity is viewed in a functional setting dealing with a person’s ability to handle his various activities of daily living.  These activities include activities such as taking care of financial affairs, personal hygiene, shopping, and attending to health care and providing for meals.  When a person cannot functionally care for themselves, and lacks the insight as to their welfare and would be at risk if a Guardian is not appointed, then a Court will see that a Guardian is needed.

When a Guardianship petition is filed, the Court usually appoints a Court Evaluator to investigate the case, and sometimes, an attorney to represent the interests of the alleged incapacitated person (“AIP”).  Article 81 requires that clear and convincing evidence be presented before a Guardian is appointed.  This is due to the inherent removal of certain liberties which a Guardianship requires.  The least restrictive form of intervention is allowed and the AIP’s interests are of paramount importance.

The imposition of a Guardianship for incapacity or disability in New York can occur in a number of ways.  Perhaps the most well-known procedure is that provided by Article 81 of the Mental Hygiene Law (MHL).  These provisions set forth the legal standards and procedures for the appointment of a Guardian for the person and/or property of an individual who is incapacitated.  Essentially, MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” provides that a person is incapacitated if they would suffer harm because they cannot provide for personal or property needs and they fail to understand and appreciated the disability.  The New York Probate Lawyer Blog has published many articles discussing different aspects and issues involved in a Guardianship case.

The appointment of a Guardian requires clear and convincing evidence.  There is a Court hearing and the focus of the inquiry is on the functional abilities of the person alleged to be incapacitated.  Essentially, the Court examines a person’s ability to handle various activities of daily living.  If a Guardian is found to be needed, the Court has the ability to structure or apply Guardianship control in a limited way to suit the needs of the individual.  The imposition of the least restrictive powers is mandated.

In this regard, MHL 81.36 entitled “Discharge or modification of powers of guardian” allows the Court to terminate a Guardianship in a number of circumstances.  These include situations where the incapacitated person becomes able to exercise powers for personal needs or property management or the appointment of a Guardian is no longer necessary.  Thus, there is a statutory and procedural framework to allow a Guardianship under Article 81 to be modified or even terminated.  Once again, the Court has discretion to provide a person with independence and limit control by others.

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.

The primary guardianship law in New York is contained in Article 81 of the Mental Hygiene Law (“MHL”) which is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management.”  The New York Probate Lawyer Blog contains many posts discussing guardianship law and procedure.

When a guardian is appointed, the New York Courts grant an Order which specifies and limits the powers which the guardian can exercise regarding the personal affairs and property management of the incapacitated person.  However, before a guardian is appointed, there are numerous safeguards in the law intended to protect the rights of a person who is alleged to be in need of a guardianship.  The recent case involving Britney Spears, while occurring in a state other than New York, brings to light the importance of adhering to and implementing these safeguards.

For example, before a guardian can be appointed, MHL Section 81.02 requires that the appointment is necessary to provide for someone’s personal and property needs and that the person is incapacitated.  The statute goes on to provide that incapacity must be based upon clear and convincing evidence and show that a person will suffer harm because of their inability to attend to their affairs and that the person does not understand and appreciate their inability to meet their own needs.

There are many factors to be considered in connection with the appointment of a Guardian for personal needs and property management pursuant to Article 81 of the Mental Hygiene Law.  A recent post in the New York Probate Lawyer Blog discussed the requirement that clear and convincing evidence be presented before a Guardian is appointed.  A recent Guardianship case entitled Matter of Elias B. decided by Broome County Supreme Court Justice David Guy on June 30, 2021 highlights the many considerations a Court needs to review in a Guardianship case.

In Elias, the alleged incapacitated person (AIP) had been hospitalized but was now ready for discharge.  It appeared that the AIP was a developmentally disabled person who had lived in the community for a number of years and had received local social services assistance.  However, the AIP had been unable to maintain a permanent living situation, but could find his way to receive medical and social services assistance, despite his transient existence.  The Court found that the AIP could attend to some, but not all, of his activities of daily living.

It appears that as part of its discharge plan, the only housing facility that the hospital could find which would accept the AIP was located in New Jersey.  The AIP refused to go to live in this location and the hospital could not otherwise discharge him without an established living environment.  Thus, the hospital sought the appointment of a Guardian to assist with the AIP’s discharge and relocation.