Article 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.