Articles Posted in Guardianships

The Guardianship law in New York is found in Article 81 of the Mental Hygiene Law (MHL). The Court may appoint a Guardian if it finds that a person is incapacitated. However, incapacity is not always easy to determine or prove.

New York City Guardianship Attorneys typically review Section 81.02 of the MHL. This section sets forth that any decision by the Court regarding incapacity needs to be made upon clear and convincing evidence. This evidence can be easy or hard to obtain. In some cases where a person has suffered a severe injury or illness it is apparent that the person would probably suffer harm without a Guardian since he cannot provide for his own personal needs or property management. An example would be where a person is unconscious or completely immobilized or unable to engage in any activities of daily living. Continue reading

Guardianship cases in New York are provided for by Article 81 of the Mental Hygiene Law (“MHL”). Article 81 is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management”. As a New York City Guardianship attorney, I have represented many individuals who have filed petitions for Guardianship appointment.

MHL Section 81.02 essentially requires that unless a person agrees to the appointment, the Court must find by clear and convincing evidence that a person is incapacitated. The person against whom the proceeding is brought is called an alleged incapacitated person (AIP).  The AIP is entitled to a hearing before the Court can make its decision regarding the need for a Guardian (MHL 81.11). Continue reading

The statutes concerning the appointment of a New York Guardian for a person who is incapacitated are located in Article 81 of the Mental Hygiene Law (MHL). There have been many articles posted concerning the law of guardianship in the New York Probate Lawyer Blog.

A Guardianship case is commenced by the preparation and filing of a proposed Order to Show Cause to be signed by the Court. Once it is signed, the Order to Show Cause will contain many items of information regarding the proposed guardianship hearing including the date upon which the hearing will be held, information regarding the appointed Court Evaluator and any court appointed attorney for the alleged incapacitated person (“AIP”). MHL Section 81.07 entitled “Notice” provides the form and many of items of information that need to be a part of the Order to Show Cause. The Order, when completed and signed by the Court, will then be served on the various parties who are interested in the proceeding or are otherwise specified in the Order as being entitled to receive a copy. If the Order to Show Cause and other papers are not properly served in accordance with the direction of the Court, the guardianship case cannot proceed. Continue reading

There are many situations where the appointment of a Guardian in New York is a necessary and helpful event.  The New York Probate Lawyer Blog has discussed various aspects of Guardianship Law in earlier posts.  Article 81 of the New York Mental Hygiene Law (MHL) contains the statutes concerning the proceedings for a Guardianship appointment.

Essentially, there are two aspects of Guardianship. The Court can grant powers to provide for someone’s personal needs such as health care. MHL Section 81.22 entitled “Powers of guardian; personal needs”, lists various personal needs powers that a guardian would have over an incapacitated person. The Court can also grant powers for property management.  MHL Section 81.21 entitled “Powers of guardian; property management”, list various property management powers that a guardian would have over an incapacitated person such as providing for managing the person’s financial affairs. Continue reading

As the year 2015 comes to an end, it is a good time to revisit some basic planning goals.  Much has been written about Advanced Planning.  The New York Probate Lawyer Blog has discussed this topic in earlier posts.  Essentially, Advanced Planning involves a number of considerations.  Concerns regarding lifetime disabilities and incapacity may be addressed by preparing documents such as a Durable Power of Attorney, a Living Will, a Health Care Proxy and a Living Trust. Continue reading

A Guardianship proceeding in New York is controlled by the provisions of Article 81 of the Mental Hygiene Law (MHL).  The New York Probate Lawyer Blog has discussed in earlier posts that the New York Courts have the jurisdiction to impose Guardianship directions generally over in-State matters.  MHL Section 81.04 provides, in part, that relief can be provided for a New York State resident or a non-resident that is present in the State.  Furthermore, MHL 81.05 set forth that the proceeding is to be commenced in the county where the alleged incapacitated person resides or is physically located.

Guardianships are typically controlled by local State laws. In the past, complicated problems have arisen where Guardianship matters involve more than one State. For example, a Guardianship may have been put into place in New York. If it is decided that it would be best to move the incapacitated person to another State such as New Jersey or Florida, the problem that would be faced is whether and to what extent the new State would recognize the Guardianship determinations that occurred in New York. In many instances a new Guardianship case would need to be commenced in the new State in order to have a local Guardian appointed. Continue reading

A New York Guardianship proceeding under Article 81 of the Mental Hygiene Law (“MHL”) typically requires that the Court find the alleged incapacitated person (“AIP”) to be incapacitated. The focus of the Court is on the functional abilities of the AIP and the manner in which the AIP can handle activities of daily living without assistance. These activities include the ability to feed oneself or handle necessary personal hygiene.

The Guardianship Court will also focus upon whether a person has advanced directives or alternative means by which to accommodate a disability. For example, as part of the creation of an Estate Plan, a person may have put into place a Power of Attorney, a Living Will, a Health Care Proxy or a Living Trust. These papers provide a means by which a person can have their personal needs and property management attended to after they no longer have the capacity to do so by themselves. There may also be situations where caretakers such as family members or nursing professionals may be in place to care for and monitor a person’s ongoing needs despite an apparent disability. Continue reading

Article 81 of the New York Mental Hygiene Law contains the provisions regarding the appointment of a Guardian. As discussed in earlier posts in the New York Probate Lawyer Blog, when a person is found to be incapacitated the Court can appoint a Guardian for personal needs and also for property management.

A Guardianship case is commenced by the petitioner who files a proposed Order to Show Cause and a Verified Petition with the Court. Upon receipt of these papers, the Court will review the allegations to determine whether it will sign the Order. Continue reading

Article 81 of the Mental Hygiene Law (“MHL”) is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management”. The New York Probate Lawyer Blog has posted many discussions regarding the process of having a Guardian appointed for an incapacitated person.

The statute provides that the Court may only appoint a Guardian after the Court has conducted a hearing (MHL §81.11). At the hearing, the parties can “present evidence” “call witnesses”, “cross examine witnesses” and be represented by an attorney. Also, the statute requires that the Court hearing take place in the presence of the person who is alleged to be incapacitated. The most essential element in the Guardianship case is typically whether a person is incapacitated. Incapacity is defined in MHL § 81.02 which sets out the basic criteria for a Guardianship appointment. Continue reading

A New York Guardianship Proceeding is commenced by the filing of a petition.  Mental Hygiene Law (MHL) Section 81.08 sets forth the requirements of the petition.  MHL Section 81.06 designates the persons who may file the proceeding which includes family members as well as any other person who has concerns regarding the alleged incapacitated person (AIP).  The New York Probate Lawyer Blog has described the Guardianship process in numerous earlier posts.

It is very common that Guardianship proceedings involve litigation where family members compete for appointment so that they can control the finances and personal needs of the AIP. Continue reading