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.