The statues concerning the appointment of a New York Guardian for personal needs or property management are located in Article 81 of the Mental Hygiene Law (MHL). In order to have a Guardian appointed MHL 81.02 requires that the alleged incapacitated person either agree to the appointment or that the person be found to be incapacitated.
The New York Probate Lawyer Blog has posted many articles concerning the appointment process for Guardians and other aspects of Guardianship. Briefly, there is the requirement that a petition be filed with the Court and that proper notice be given to interested parties. An alleged incapacitated person has the right to oppose the imposition of a Guardianship and also the selection of the person appointed. In these hearings the Court will focus on an individual’s functional limitations with regard to engaging in activities of daily living.
One interesting section of Article 81 is MHL 81.29 entitled “Effect of the appointment on the incapacitated person”. This section is important since a person who is found to be incapacitated retains certain civil rights. Also, there may be aspects of the person’s pre-appointment actions which may need to be modified if they were tainted by the incapacity.