Articles Posted in Guardianships

New York Guardianship proceedings are controlled by Article 81 of the Mental Hygiene Law (“MHL”) entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management.”  The New York Probate Lawyer Blog has published many articles concerning Guardianship.

The essence of appointing a Guardian concerns a determination that a person is incapacitated.  Incapacity, contrary to its connotation that a person is completely incapable of handling personal needs or property matters, is really a case by case individual determination of abilities.  The inquiry is to examine a person’s functional ability as it relates to handling activities of daily living.  According to MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment,” incapacity needs to be shown by clear and convincing evidence.  There must be a determination that a person will likely suffer harm because they cannot provide for their needs and that the person cannot appreciate and understand the consequences of their disability.

In a typical case, a petition is filed with the Court.  The Court then sets a date for a hearing.  All close family members are given notice as well as other interested parties.  The alleged incapacitated person usually has a Court-appointed attorney and the Court may appoint a Court Evaluator.  The Evaluator reviews the case, interviews parties, and provides the Court with a report and recommendations.

Article 81 of the New York Mental Hygiene Law provides the various statutory provisions for a New York Guardianship.  Typically, the statute is utilized to obtain a guardianship over another person’s financial affairs and personal needs.  The subject of these proceedings is referred to as an alleged incapacitated person (“AIP”).

The procedures set forth in the statute require that a petition be filed.  MHL Section 81.08 entitled “Petition” lists the information which must be contained in the Guardianship petition including a description of the AIPs functional ability.  A key part of the Guardianship law is that a Court will need to be shown the ability of a person to handle various activities of daily living.  These activities include the ability of a person to engage in financial matters and also to handle personal needs such as seeking medical attention, and maintaining a safe and secure living environment.  Basic needs such as cleanliness and personal hygiene are important considerations.  A Guardianship ensures that a person who is functionally incapacitated and at risk is protected from harm.

The Guardianship statute is also very particular that a Court only impose the least restrictive control by a Guardian.  An AIP’s freedom and choice are a paramount consideration for protection by the Court.

The appointment of a Guardian for personal needs or property management is provided for by Article 81 of the Mental Hygiene Law.  This statute contains the numerous provisions regarding the procedure and substantive law for a New York Guardianship.  The New York Probate Lawyer Blog has published many articles regarding Guardianship issues.

As a recap, a Guardianship is appropriate when a person is found to be incapacitated. Incapacity is viewed in a functional setting dealing with a person’s ability to handle his various activities of daily living.  These activities include activities such as taking care of financial affairs, personal hygiene, shopping, and attending to health care and providing for meals.  When a person cannot functionally care for themselves, and lacks the insight as to their welfare and would be at risk if a Guardian is not appointed, then a Court will see that a Guardian is needed.

When a Guardianship petition is filed, the Court usually appoints a Court Evaluator to investigate the case, and sometimes, an attorney to represent the interests of the alleged incapacitated person (“AIP”).  Article 81 requires that clear and convincing evidence be presented before a Guardian is appointed.  This is due to the inherent removal of certain liberties which a Guardianship requires.  The least restrictive form of intervention is allowed and the AIP’s interests are of paramount importance.

The imposition of a Guardianship for incapacity or disability in New York can occur in a number of ways.  Perhaps the most well-known procedure is that provided by Article 81 of the Mental Hygiene Law (MHL).  These provisions set forth the legal standards and procedures for the appointment of a Guardian for the person and/or property of an individual who is incapacitated.  Essentially, MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” provides that a person is incapacitated if they would suffer harm because they cannot provide for personal or property needs and they fail to understand and appreciated the disability.  The New York Probate Lawyer Blog has published many articles discussing different aspects and issues involved in a Guardianship case.

The appointment of a Guardian requires clear and convincing evidence.  There is a Court hearing and the focus of the inquiry is on the functional abilities of the person alleged to be incapacitated.  Essentially, the Court examines a person’s ability to handle various activities of daily living.  If a Guardian is found to be needed, the Court has the ability to structure or apply Guardianship control in a limited way to suit the needs of the individual.  The imposition of the least restrictive powers is mandated.

In this regard, MHL 81.36 entitled “Discharge or modification of powers of guardian” allows the Court to terminate a Guardianship in a number of circumstances.  These include situations where the incapacitated person becomes able to exercise powers for personal needs or property management or the appointment of a Guardian is no longer necessary.  Thus, there is a statutory and procedural framework to allow a Guardianship under Article 81 to be modified or even terminated.  Once again, the Court has discretion to provide a person with independence and limit control by others.

Article 81 of the Mental Hygiene Law (MHL) contains the provisions regarding the appointment of a Guardian.  A Guardian can be appointed for personal needs and also for property management.  Generally, according to MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment”, a Guardian is appointed after the Court determines that the alleged incapacitated person is incapacitated.  There needs to be clear and convincing evidence which includes a determination that the person is likely to suffer harm and that they do not appreciate or understand the nature of the disability that affects them.

I have represented individuals in many Guardianship cases throughout New York.  As a Guardianship lawyer, I am aware that a Court will want to see the extent to which a person can handle their activities of daily living such as personal health and care matters and financial transactions.  The New York Probate Lawyer Blog contains numerous posts regarding Guardianship issues.

One interesting aspect of Article 81 is Section 81.29 entitled “Effect of the appointment on the incapacitated person”.  Among this statute’s provisions is the authority for the Court to revoke, modify or amend any power of attorney, health care proxy, contract or conveyance made by a person found to be incapacitated.  By utilizing this provision, a Court is able to rectify transfers or delegations of authority made by a person who did not have the capacity to enter into the transaction at the time.  This provides an additional layer of protection for individuals and forestalls abuse.

The primary guardianship law in New York is contained in Article 81 of the Mental Hygiene Law (“MHL”) which is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management.”  The New York Probate Lawyer Blog contains many posts discussing guardianship law and procedure.

When a guardian is appointed, the New York Courts grant an Order which specifies and limits the powers which the guardian can exercise regarding the personal affairs and property management of the incapacitated person.  However, before a guardian is appointed, there are numerous safeguards in the law intended to protect the rights of a person who is alleged to be in need of a guardianship.  The recent case involving Britney Spears, while occurring in a state other than New York, brings to light the importance of adhering to and implementing these safeguards.

For example, before a guardian can be appointed, MHL Section 81.02 requires that the appointment is necessary to provide for someone’s personal and property needs and that the person is incapacitated.  The statute goes on to provide that incapacity must be based upon clear and convincing evidence and show that a person will suffer harm because of their inability to attend to their affairs and that the person does not understand and appreciate their inability to meet their own needs.

There are many factors to be considered in connection with the appointment of a Guardian for personal needs and property management pursuant to Article 81 of the Mental Hygiene Law.  A recent post in the New York Probate Lawyer Blog discussed the requirement that clear and convincing evidence be presented before a Guardian is appointed.  A recent Guardianship case entitled Matter of Elias B. decided by Broome County Supreme Court Justice David Guy on June 30, 2021 highlights the many considerations a Court needs to review in a Guardianship case.

In Elias, the alleged incapacitated person (AIP) had been hospitalized but was now ready for discharge.  It appeared that the AIP was a developmentally disabled person who had lived in the community for a number of years and had received local social services assistance.  However, the AIP had been unable to maintain a permanent living situation, but could find his way to receive medical and social services assistance, despite his transient existence.  The Court found that the AIP could attend to some, but not all, of his activities of daily living.

It appears that as part of its discharge plan, the only housing facility that the hospital could find which would accept the AIP was located in New Jersey.  The AIP refused to go to live in this location and the hospital could not otherwise discharge him without an established living environment.  Thus, the hospital sought the appointment of a Guardian to assist with the AIP’s discharge and relocation.

Article 81 of the Mental Hygiene Law provides the statutes regarding the appointment of a property management and personal needs Guardian.

A Guardianship lawyer is aware that these proceedings focus on a number of factors before a Court determines that a Guardian should be provided.

First and foremost, the inquiry concerns the ability of the alleged incapacitated person (“AIP”) to handle his affairs.  This examination focuses on the AIP’s functional abilities commonly referred to as the activities of daily living.  Thus, a full review of the ability of the AIP to engage in functions such as personal hygiene, attending to personal health decisions, domestic functions such as cleaning and caring for a residence, engaging in financial matters such as paying bills, understanding the nature and extent of assets and appropriately dealing with everyday matters.  As set forth in MHL Section 81.02, a Court can appoint a Guardian if it finds that it is necessary to provide for a person’s personal and financial needs, and that a person would suffer harm because they cannot provide for such needs and do not understand and appreciate that they are suffering from such disability.  The New York Probate Lawyer Blog has published many articles concerning Guardianship matters.

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.