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Articles Posted in Guardianships

Guardianship-300x201The 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.

shutterstock_1465659569-300x201Article 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.

shutterstock_1465659569-300x201The 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.

original_1074565532-300x107There 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.

shutterstock_1465659569-300x201Article 81 of the Mental Hygiene Law provides the statutes regarding the appointment of a property management and personal needs Guardian.

A Guardianship lawyer is aware that these proceedings focus on a number of factors before a Court determines that a Guardian should be provided.

First and foremost, the inquiry concerns the ability of the alleged incapacitated person (“AIP”) to handle his affairs.  This examination focuses on the AIP’s functional abilities commonly referred to as the activities of daily living.  Thus, a full review of the ability of the AIP to engage in functions such as personal hygiene, attending to personal health decisions, domestic functions such as cleaning and caring for a residence, engaging in financial matters such as paying bills, understanding the nature and extent of assets and appropriately dealing with everyday matters.  As set forth in MHL Section 81.02, a Court can appoint a Guardian if it finds that it is necessary to provide for a person’s personal and financial needs, and that a person would suffer harm because they cannot provide for such needs and do not understand and appreciate that they are suffering from such disability.  The New York Probate Lawyer Blog has published many articles concerning Guardianship matters.

shutterstock_1465659569-300x201Article 81 of the Mental Hygiene Law provides the procedures and requirements regarding guardianship of an incapacitated person.  The statute allows for the appointment of a guardian for property management and for personal needs.  Whether or not a person requires a guardian is determined by the Court after a hearing.  One of central inquiries when determining incapacity is the extent to which the alleged incapacitated person can perform activities of daily living such as caring for personal hygiene, banking and financial affairs and other ordinary and regular daily living functions.  The New York Probate Lawyer Blog has published numerous articles about guardianship and the Court proceedings for appointment.

A guardian, like all fiduciaries, has duties and responsibilities.  If any of these obligations are breached, the guardian may be held personally responsible.  The guardian can also be discharged.  There is a duty to provide the Court with a full annual accounting of guardianship activities.  MHL Section 81.31 entitled “Annual report” states that the guardian must file a report with the Court every May.  The statute delineates the information that must be included in the report.  The Court, through a Court Examiner, reviews each accounting and either approves it or asks the guardian for additional information.  The Court Examiner may seek Court intervention if the guardian is not acting or reporting properly.  The Court’s primary goal is to insure that the interests of the incapacitated person are protected.  The Court Examiner typically will review all of the guardian’s information including bank statements and financial records to make certain that the information in the report is accurate and authentic.

The guardian’s duty to account and the Court Examiner’s review were recently discussed in a Queens guardianship case entitled Matter of Soifer.  This case was decided by Queens Supreme Court Justice Bernice Siegel on October 29, 2020.  In Soifer, the incapacitated person’s cousin had been acting as guardian.  The Court Examiner raised a concern with the Court because the cousin was also a trustee of a trust that was created for the incapacitated person’s benefit under her mother’s Last Will.  The cousin was a remainder beneficiary of the trust.  The Court Examiner felt that the cousin’s role as Court appointed guardian and trustee / beneficiary under the Will created a conflict of interest.

One tends to view New York Estate cases and Guardianship cases as completely separate matters.  In an Estate, a person dies, and his Last Will and Testament is probated, or an administration proceeding is needed for an intestacy.  In contrast a Guardianship proceeding is commenced while a person is alive.  The goal is to have a Guardian appointed for the person and property of someone who is incapacitated.  The New York Probate Lawyer Blog has published many articles concerning both Estate and Guardianship issues.

As an Estate and Guardianship attorney for 40 years I have encountered many situations where Guardianships and Estates intersect.  In fact, the coalescing of these matters is rather common.  For instance, a person may become incapacitated and require the appointment of a Guardian.  Article 81 of the Mental Hygiene Law provides the statutory requirements for such appointment.  Among the issues that may be faced in the case is the protection and control of the incapacitated person’s property.  There may be concerns about transfers of a person’s assets that were improper due to undue influence or the abuse of a power of attorney.  Guardianship cases often involve concerns regarding elder abuse.  A Court appointed Guardian can bring a turn-over proceeding to recover assets that were wrongfully transferred at a time of incompetence.

These very same issues are often faced in Estate litigation after a person dies.  An Estate fiduciary, such as an executor or administrator, can bring a turn-over proceeding to re-claim assets that were improperly transferred during the decedent’s lifetime or are withheld from the Estate.  It is common that these Court disputes are transferred from Guardianship litigation to Estate litigation after death.  I have seen this occur on many occasions.  It is interesting to know that the Guardianship Court has the power to revoke or void transactions it finds to be improper.  The Court can even revoke a power of attorney or health care proxy that it finds to have been executed at a time when a person did not have the capacity to sign.  However, a Guardianship Court may not revoke a Last Will and Testament.  The validity of a Last Will can only be challenged in a Will Contest in the Surrogate’s Court after a person dies.  I have handled many of these Will Contest cases.  It often appears that the disputes that take place in the Guardianship Court are just the beginning of the contested Will matters that are fought in the Surrogate’s Court after the incapacitated person dies.   Many times the evidence from the Guardianship case is used in the Estate battles.

shutterstock_1465659569-300x201As a New York Guardianship lawyer for over 35 years, I have encountered many different situations in these types of cases. Article 81 of the Mental Hygiene Law (MHL) provides the various statutes concerning the basis and procedure for the appointment of a Guardian for property management and personal needs.

MHL Section 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” sets forth that a person who files a petition to have a Guardian appointed must present clear and convincing evidence that an appointment is warranted and that the alleged incapacitated person is incapacitated. It needs to be shown that a person would suffer harm without the appointment because their personal and property needs cannot be handled and such person does not appreciate their own inability to attend to their affairs. The New York Probate Lawyer Blog contains many articles regarding Guardianship matters.

Demonstrating to the Court that a Guardianship should be imposed is not always easy. In fact, if a petition for a Guardianship due to alleged incapacity is filed and the Court dismisses the case, the party filing the papers may be held responsible for various costs by the Court. This was the situation in a recent Manhattan Guardianship case entitled In the Matter of Cynthia W. This proceeding was filed by the son of an alleged incapacitated person who was the petitioner’s 85-year-old mother. The case was quite litigious. Initially, the Court had made a number of procedural rulings which included a direction that the petitioner was not allowed to call his mother as a witness and that he would be prevented from introducing medical evidence concerning his mother’s condition. The Court noted that Article 81 proceedings concern a person’s functional limitations and that the mother had a right to invoke the doctor-patient privilege. In these matters the Court focuses on a person’s ability to engage in activities of daily living.

The statues concerning the appointment of a New York Guardian for personal needs or property management are located in Article 81 of the Mental Hygiene Law (MHL).  In order to have a Guardian appointed MHL 81.02 requires that the alleged incapacitated person either agree to the appointment or that the person be found to be incapacitated.

The New York Probate Lawyer Blog has posted many articles concerning the appointment process for Guardians and other aspects of Guardianship.  Briefly, there is the requirement that a petition be filed with the Court and that proper notice be given to interested parties.  An alleged incapacitated person has the right to oppose the imposition of a Guardianship and also the selection of the person appointed.  In these hearings the Court will focus on an individual’s functional limitations with regard to engaging in activities of daily living.

One interesting section of Article 81 is MHL 81.29 entitled “Effect of the appointment on the incapacitated person”.   This section is important since a person who is found to be incapacitated retains certain civil rights.  Also, there may be aspects of the person’s pre-appointment actions which may need to be modified if they were tainted by the incapacity.

Article 81 of the New York Mental Hygiene Law (“MHL”) provides the statutory provisions covering the appointment of a Guardian.   A Guardian may be appointed for personal needs and also for property management.

The procedure set forth in the statute to commence a Guardianship proceeding is straight forward.  MHL section 81.08 states that there should be a petition that needs to include information regarding the alleged incapacitated person (“AIP”) such as name age and address and the AIP’s ability to engage in activities of daily living.

In order for the Court to appoint a Guardian it must find that the AIP is incapacitated or agrees to the appointment.  One interesting aspect of MHL section 81.02,  which is entitled “Power to appoint a guardian of the person and/or property; standard for appointment”, is that the Court is required to consider whether the AIP has other “available resources” that may be used rather than having a Guardian appointed.   Such resources are described in MHL section 81.03(e) and include nurses, aides and powers of attorney and trusts.

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