Articles Posted in Guardianships

New York Mental Hygiene Law Article 81 provides the guidelines and the procedure to appoint a Guardian for Personal Needs and Property Management for persons with incapacities. Provisions of the law also provide the Court with the power to modify, amend or revoke different types of transactions or documents entered into while a person was incapacitated such as a contract, power of attorney or health care proxy. New York Mental Hygiene Law Section 81.29(d).

In many instances the incapacitated person is elderly. The transfer of property by means of a power of attorney or the conveyance of real estate by deed where the power or deed was executed while the person was incapacitated may not reflect the incapacitated person’s estate plan. In fact, such transfers may result in giving assets to individuals that would otherwise not be beneficiaries of choice.

A recent example of a Court exercising its authority to void certain transactions entered into by an incapacitated person is found in Matter of Jerry M. v. Geraldine P., decided by Justice Wilma Guzman on June 15, 2010 (Bronx Supreme Court), as reported in The New York Law Journal on June 18, 2010, p. 18. In her decision, Judge Guzman found that Geraldine P. was incapacitated and appointed a Guardian for personal needs and property management. In addition, the Judge annulled a marriage that Geraldine P. had entered into and voided a deed she had signed transferring her home. The Court found that Geraldine did not understand the nature and consequences of either the marriage or the deed transfer.

Improper control over the affairs of an incapacitated person is often the setting for what later turns out to be a Will contest or estate dispute when assets intended to be bequeathed or otherwise transferred upon death to loved ones are directed to other parties prior to death. An interesting aspect of the Court’s powers relating to the revocation of documents concerns a person’s Last Will and Testament. In the past there had been occasions where the Guardianship Court invalidated a Last Will and Testament that the Court had found to be executed while a person was incapacitated. However, a recent amendment to Section 81.29 (d) of the New York Mental Hygiene Law prohibits the revocation or invalidation of a Last Will or Codicil during the lifetime of the incapacitated person. Thus, the validity of a Last Will must be challenged after the person’s death during the probate proceeding after the Will is filed in the Surrogate’s Court.

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In a New York Mental Hygiene Law Article 81 Guardianship proceeding, the Court typically appoints a Court Evaluator. The Court Evaluator performs an independent investigation and assists the Court in determining whether a person is incapacitated and who should be appointed as Guardian. The Court Evaluator’s fee is often paid from the funds of the Incapacitated Person, although the fee may be paid by the petitioner.

In a recent decision, Matter of A.M., dated 6/1/10 reported in the New York Law Journal, on Friday, June 11, 2010, p. 27, Justice Alexander W. Hunter, Jr. directed that a successor Guardian pay the fee of a Court Evaluator from funds the Guardian had collected on behalf of the Incapacitated Person. The Guardian had previously collected sufficient funds to pay the Court Evaluator’s fee but had spent the funds by making payments which included paying itself fees on account of the Guardian’s statutory commission. In effect, the Court ruled that the Court Evaluator’s court awarded fee took priority over the subsequently earned commission.

Judge Hunter’s decision shows that a Court Evaluator serves an important role in Guardianship proceedings. The information presented to the Court by the Court Evaluator is vital for a full determination.

The duties of the Court Evaluator include interviewing the Alleged Incapacitated Person, explaining the proceeding to the Alleged Incapacitated Person, determining whether the Alleged Incapacitated Person wants legal counsel, interviewing the petitioner and preparing a report and recommendations for the Court.

The Article 81 Guardianship statutes establish a procedure for the appointment of a property and/or personal needs Guardian that is beneficial and protective of the Incapacitated Person. These proceedings require a hearing in front of the Court and testimony from witnesses. Many times the hearings are contested and deal with disputes regarding incapacity, competing family members or others who desire to be appointed as Guardian, and issues concerning the misappropriation of the Alleged Incapacitated Person’s assets.

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