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.