Articles Posted in Guardianships

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

The Guardianship law in New York is found in Article 81 of the Mental Hygiene Law (MHL). The Court may appoint a Guardian if it finds that a person is incapacitated. However, incapacity is not always easy to determine or prove.

New York City Guardianship Attorneys typically review Section 81.02 of the MHL. This section sets forth that any decision by the Court regarding incapacity needs to be made upon clear and convincing evidence. This evidence can be easy or hard to obtain. In some cases where a person has suffered a severe injury or illness it is apparent that the person would probably suffer harm without a Guardian since he cannot provide for his own personal needs or property management. An example would be where a person is unconscious or completely immobilized or unable to engage in any activities of daily living. Continue reading

Guardianship cases in New York are provided for by Article 81 of the Mental Hygiene Law (“MHL”). Article 81 is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management”. As a New York City Guardianship attorney, I have represented many individuals who have filed petitions for Guardianship appointment.

MHL Section 81.02 essentially requires that unless a person agrees to the appointment, the Court must find by clear and convincing evidence that a person is incapacitated. The person against whom the proceeding is brought is called an alleged incapacitated person (AIP).  The AIP is entitled to a hearing before the Court can make its decision regarding the need for a Guardian (MHL 81.11). Continue reading

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