Articles Posted in Guardianships

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

Article 81 of the New York Mental Hygiene Law (MHL) is entitled “Proceedings For Appointment of a Guardian for Personal Needs or Property Management”.   Under this statute, a Guardian can be appointed for a person who is found to be incapacitated.

A determination regarding incapacity must be based upon clear and convincing evidence (MHL § 81.02).   In most Guardianship cases, the Court will review the functionality of the alleged incapacitated person (AIP). This means that there will be an examination of the AIP’s ability to handle activities of daily living such as the ability to handle finances, shop, cook, take care of personal hygiene and other ordinary daily activities. Continue reading

The statutes in New York provide for a Guardianship for a person who is found to be incapacitated. Article 81 of the Mental Hygiene Law is entitled “Proceedings For Appointment of a Guardian For Personal Needs or Property Management”.

In a typical case a Guardianship is sought to be established by someone who is concerned with the welfare of an alleged incapacitated person. There are numerous situations that arise that can prompt a Guardianship application. The more common problems involve cases where the incapacitated person cannot make decisions regarding assets or handle property matters. As a result, various bills are not being paid such as utility bills, medical expenses, a mortgage or rent or other necessary items. Due to the person’s inability to deal with these matters he is at risk and may suffer harm if these expenses remain unpaid. Continue reading

Guardianship cases in New York are controlled by Article 81 of the Mental Hygiene Law (MHL). When a person wants to commence a Guardianship proceeding, there are a number of papers that must be filed with the Court. The two essential papers are the Petition and the Order to Show Cause.

In the Petition, which is usually prepared with the assistance of a Guardianship Attorney, all of information regarding the Alleged Incapacitated Person (AIP) is provided. MHL Section 81.08 entitled “Petition”, lists the information that needs to be provided. These items include the name, address and age of the AIP and a description of the AIP’s ability to manage his activities of daily living. Also, the powers regarding property management and personal needs that are being sought should be specified. The AIP’s financial information should be provided, as well. Continue reading

Guardianship cases in New York are controlled by Article 81 of the Mental Hygiene Law (MHL). These proceedings concern the appointment of Guardians for personal needs and for property management.

The Court proceedings in Article 81 cases involve the filing of a petition with the Court and a hearing. The Court must decide whether clear and convincing evidence has been presented that shows a person to be incapacitated and in need of a Guardian. Continue reading

The appointment of a Guardian in New York is provided for in Article 81 of the Mental Hygiene Law (MHL). There are two areas in which a Guardian can be needed. A person who is found to be incapacitated may need a Guardian for personal needs. A personal needs Guardian will have the authority to make decisions regarding health care, living arrangements and other personal decisions regarding the AIP’s affairs.

A Guardian for property management has the power to collect and control the assets of the incapacitated person. These assets may include bank accounts, brokerage accounts and real estate. It is the Guardian’s duty to collect these assets or place these assets under the Guardian’s control and use them for the person’s best interests. Continue reading

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