COVID-19 UPDATE: Firm Operations Continue Uninterrupted - Learn More About How We Are Helping Our Clients

Articles Posted in Guardianships

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.

Article 81 of the New York Mental Hygiene Law (MHL) sets forth the rules and procedures for the appointment of Guardians for an incapacitated person.  The statute’s title is “Proceedings For Appointment of a Guardian For Personal Needs or Property Management”.

The main focus of the statute is to protect individuals who are incapacitated.  Functionality is important to the Court in making its determination.  Whether a person can engage in activities of daily living such as personal hygiene, and handling routine financial matters is scrutinized by the Court.

In the typical Guardianship case a petition is filed with the Court which details the reasons upon which a Guardian for personal needs or property management should be appointed.

Article 81 of the New York Mental Hygiene Law (MHL) contain the various provisions regarding the appointment of a Guardian for a person who is incapacitated.  The main title of this Article is “Proceedings For Appointment of A Guardian For Personal Needs or Property Management”.

The various sections of the statute provide both the procedure and the substantive law regarding Guardianship cases.  As can be seen from the title, the Court can appoint either a Guardian for property management or to assist with a person’s personal needs.  In most cases the Court will appoint both types.  The appointment very often will be for one person who then acts in both capacities.  MHL section 81.21 sets forth the powers of the property Guardian while MHL section 81.22 details the personal needs powers.

Many of the Guardianship cases concern issues dealing with a Power of Attorney.  Sometimes, a person who was appointed as an agent under a Power does not act properly or abuses his authority.  When a Guardianship proceeding is commenced the Court may be asked to review the agent’s actions.  Such review is important since the Court needs to determine wither a Guardian is required to try and recoup funds that were wrongfully administered.

The appointment of a Guardian in New York requires the commencement of a Guardianship Case in the Court.  It may be difficult at times to determine the appropriate procedures and the proper Court concerning these matters.  There are Guardianships under Article 17-A of the Surrogate’s Court Procedure Act (SCPA)Article 81 of the New York Mental Hygiene Law (MHL) also sets forth a means for the appointment of a Guardian.

A recent Brooklyn Guardianship case decided by Brooklyn  Surrogate Margarita Lopez Torres dated December 5, 2018 entitled Matter of Eli T., provides an excellent explanation of the various statutory frameworks.  As explained by the Court, the Article 17A rules concern Guardianships for people who are deemed to have an intellectual or developmental disability.  The disability must be permanent or indefinite.  In these cases the petition to the Court must include certifications from licensed physicians and psychologists.  The Surrogate pointed out that the Article 17A procedure is not only limited regarding the type of disability that can be considered, the resulting Guardianship results in a complete deprivation of the incapacitated person’s rights.

In contrast, an Article 81 Guardianship, which is filed in the New York State Supreme Court, can involve all different types of disabilities.  Most importantly, this proceeding can mold the terms and restrictions of the appointment to meet the needs and requirements of the incapacitated person.  The Court attempts to provide the least restrictive conditions on the individual so that they can retain some decision making power.  A lot depends upon the person’s ability to handle their activities of daily living.

When a person becomes incapacitated, Article 81 of the Mental Hygiene Law provides for the appointment of a property management Guardian and a Guardian for personal needs. New York City Guardianship Lawyers are familiar with the statutes regarding Guardians and the need to provide clear and convincing evidence to have a Guardian appointed. The New York Probate Lawyer Blog contains numerous articles regarding Guardianship.

Once a Guardian is appointed, it is important to understand the powers that a Guardian has available to handle the Incapacitated Person’s (“IP”) affairs.  MHL Section 81.29 entitled “Effect of the appointment on the incapacitated person” sets forth some interesting directions. One of the statutory provisions contained in paragraph (d) of Section 81.29 is that the Court cannot revoke or invalidate a Will or a Codicil that was made by an incapacitated person.  In effect, when a Will appears to be the subject of undue influence or other issues that may emanate from the circumstances of incapacity, the ordinary path to deal with such issues would be a Will Contest in the Surrogate’s Court after the IP dies. This often leaves many of these issues unresolved for years while the IP is still alive. Continue reading

The appointment of a Guardian for the personal needs and property management of an incapacitated person is provided by Article 81 of the Mental Hygiene Law (MHL). There are many interesting aspects to Guardianship proceedings. MHL Section 81.02 requires that the Court needs to find clear and convincing evidence that a person is incapacitated.

There are many variations regarding the extent of incapacity of an Alleged Incapacitated Person (“AIP”). Some AIP’s require more assistance with activities of daily living than others. In other words, some AIP’s can function effectively to some extent and, therefore, do not need a Guardian to completely control their activities. Continue reading

Contact Information