Guardianships

November 20, 2013

A New York Guardianship May Be Allowed To Pay For Extraordinary Expenses For An Incapacitated Person

New York Guardianship for an incapacitated person is controlled by Article 81 of the Mental Hygiene Law (“MHL”). As discussed in previous posts, this statute contains the procedure for the appointment of a guardian as well as the powers that may be given to a personal needs guardian and a property management guardian.

Many of the guardian’s powers are clear and routine. For example, MHL Section 81.21 (Powers of a guardian; property management) provides that a guardian can marshall assets, pay bills that are reasonably necessary for maintenance of the incapacitated person and invest guardianship funds. The guardian’s powers are typically delineated in the Order or Judgment appointing the guardian and can vary from case to case depending upon the particular situation.

Guardianship cases may involve either old or young incapacitated persons. In many instances, a Guardianship is utilized for the benefit of an infant or younger individual who has suffered an injury that results in incapacity and has recovered a substantial sum of money in a lawsuit stemming from the events causing the injury. These events include automobile accidents or medical malpractice.

It is rather common that when an infant or child is injured and receives a large money award due to incapacitating injuries, the child continues to reside at home with his parents. Issues then arise as to what extent, if any, the guardianship funds may be utilized for the infant notwithstanding that a parent has a duty to support a minor child. Another issue that appears is to what extent can expenditures for the incapacitated child also result in a benefit for the child’s parents and other members of his household.

In a recent case entitled Matter of Sigal, decided by Judge Gary F. Knobel of the Nassau County Court on November 12, 2013 and reported in the New York Law Journal on November 22, 2013, the Court was faced with some of these issues. The co-guardians – parents of their incapacitated daughter sought reimbursement from guardianship funds for the costs of a bat mitzvah party and authorization to expend guardianship money for the cost of a vacation for their entire family and an aide. The Court reviewed the many applicable factors including a consideration of the preservation of guardianship funds, the financial ability of the parents to personally pay for these expenses and whether the costs were for necessities, treatment or for education. Based upon these factors and others the Court denied the request for reimbursement of the bat mitzvah party expenses but allowed some funds for the vacation. The Court was concerned that the guardians recognize that the guardianship funds were not for family use but must be preserved for the incapacitated person’s needs throughout her life.

I have represented many petitioners and parents in venues such as Manhattan Guardianship and Brooklyn Guardianship. The Courts routinely inquire as to the proper use of guardianship funds so that the interests of the incapacitated person is protected to the maximum extent possible. While some of these types of cases require the establishment of a Supplemental Needs Trust, the Courts will still require that the trustees exercise their fiduciary powers in accordance with these principals.

September 18, 2013

New York Guardianship Can Be Avoided by Using Advance Directives

by Jules M. Haas

A New York Guardianship proceeding under Article 81 of the Mental Hygiene Law (“MHL”) can be a very complex and sometimes lengthy process. The New York Probate Lawyer Blog has discussed in many posts the Guardianship process. The essence of the proceeding is a determination as to whether the alleged incapacitated person (“AIP”) is “incapacitated”. As provided in MHL 81.02 a finding of incapacity requires clear and convincing evidence that the AIP will be harmed because he cannot provide for his personal or property management needs and cannot adequately appreciate and understand the nature and consequence of his disability.

The Guardianship Court will be presented with a Petition and a Court Evaluator usually will provide the Court with a report and recommendations. A hearing will be held at which time testimony from parties and witnesses will be given and other evidence introduced. A decision and judgment issued by the Court finally determines whether a Guardian is appointed, and if so, the Court selects the Guardian and delineates the Guardianship Powers.

It is preferable, however, and if possible, for a person to prepare and finalize documents identified as advance directives that might obviate the need for a Guardianship. A Health Care Proxy is a perfect example as to advance planning whereby a person is named as an agent to make health care decisions if the principal or creator of the proxy is unable to do so. Similarly, a Power of Attorney allows a person to select other individuals to make property management decisions regarding many specified items such as real estate or business transactions or tax matters. These two documents, a Health Care Proxy and Power of Attorney, might avoid a long and costly Guardianship court case.

Another document that a New York Estate Planning Lawyer can assist with is a Living Trust. These trusts allow the creator to place all assets under the trust while maintaining full control as the Trustee over their disposition. However, provisions in the Trust can provide for a substitute Trustee if the creator becomes disabled or incapacitated. A Living Trust can also act as a substitute for a Last Will and typically provides very similar provisions for the disposition of the trust promptly upon the death of the creator.

While advance directives can be very helpful and may avoid the Guardianship process, all such documents may still be the subject of controversy and court proceedings. Just recently, Dutchess County Supreme Court Justice James D. Pagones decided a case entitled Matter of IMRE B.R. In IMRE a person had executed a power of attorney and Merrill Lynch refused to accept or honor the power. Merrill Lynch claimed that the principal might have lacked capacity to sign the power. A petition was then brought under the New York General Obligations Law Sec. 5-1510(2)(i) to compel Merrill to accept the power of attorney. After reviewing the allegations, the Court granted the petition to compel.

Estate and lifetime planning requires a consideration of a persons assets, desires and intentions and the effect these decisions may have on intended beneficiaries. The implementation of advance directives can provide an efficient and expeditious way to deal with circumstances such as incapacity and even a short-term disability. By expending the time and effort to provide these papers, the more cumbersome and lengthy Guardianship process may be avoided.

August 28, 2013

A New York Guardianship Court Evaluator is Entitled to Be Paid a Fee

by Jules M. Haas

Article 81 of the New York Mental Hygiene Law (“MHL”) contains the provisions regarding the appointment of a Guardian for a person who is incapacitated. The New York Probate Lawyer Blog has previously discussed that the statute provides powers for a Guardian for property management (MHL 81.21) and for personal needs (MHL 81.22).

In most Guardianship proceedings the Court will appoint a Court Evaluator (MHL 81.09). A Court Evaluator is named in the Order to Show Cause that is signed by the Court when the Guardianship case is commenced. The Court Evaluator’s job is essentially to perform an investigation of the case and prepare a written report and recommendation for the Court. This investigation and report concerns such issues as the incapacity of the person alleged to be in need of a Guardian, the nature of such person’s property and assets and who is the most appropriate person to be appointed as Guardian.

In many instances the time expenditures for a Court Evaluator to perform a full investigation, prepare a report, and attend all Court hearings can be quite extensive. This is especially so when the Guardianship proceeding is contested. A Contested Guardianship Proceeding can involve issues regarding whether the alleged incapacitated person actually needs a Guardian or there may be intra-family fighting as to which family member is most appropriate to be appointed as Guardian.

Regardless of the complexity of the case, the Court Evaluator is usually entitled to be paid a fee for the services incurred in performing the job. MHL 81.09(f) states that when the Court appoints a Guardian and grants the petition, the Court can award a reasonable fee to be paid from the incapacitated person’s assets. However, when the Guardianship application is denied, the Court may direct that a Court Evaluator’s fee be paid from the alleged incapacitated person’s assets and/or directly by the person who commenced the proceeding.

Sometimes, the alleged incapacitated person dies during the Guardianship case. In this circumstance, the statute provides that the Court may award a fee to be paid by the person’s estate and/or the petitioner. A recent case decided by Justice Alexander W. Hunter, Jr. (Supreme Court, Bronx County) entitled Matter of Soto, decided on August 2, 2013 and reported in the New York Law Journal on August 29, 2013, concerned this latter situation. In Soto, the Court had issued an Order and Judgment appointing a Guardian and had awarded a fee to the Court Evaluator. However, before the Guardianship actually commenced the incapacitated person died. Therefore, the Guardian could not pay the Court Evaluator’s fee. Thereafter, when the Court Evaluator made an application to the Court to have the petitioner personally pay the fee, the Court denied the application and directed the Court Evaluator to file a claim in the Surrogate’s Court against the incapacitated person’s estate for payment of the fees.

Guardianship cases can be very complicated and require the assistance of an experienced New York Guardianship Attorney. I have represented clients who have filed petitions to be appointed as Guardians for family members and friends. All aspects of these matters need to be considered including the necessary proof of incapacity and the manner in which expenses such as Court Evaluator’s fees are to be paid.

August 7, 2013

A New York Supplemental Needs Trust Can Preserve Estate Assets for an Incapacitated Person

by Jules M. Haas

A New York Supplemental Needs Trust (“SNT”) is a trust that allows trust funds to be available for a person who is receiving government benefits such as Medicaid or Social Security Disability (“SSD”). The governmental payments continue and are not reduced or terminated despite the existence of the trust fund. While the government sometimes may be entitled to claim a re-payment upon the death of the beneficiary, the beneficiary can utilize both the government and trust resources during life in furtherance of their quality of life.

A SNT is typically needed where a person is disabled or incapacitated and is the recipient of governmental assistance. New York Estates, Powers and Trusts Law (“EPTL”) Section 7-1.12 provides the statutory details as to the trust requirements. New York Estate and Guardianship Lawyers generally become aware that there are many different situations where a SNT can preserve assets to be used for incapacitated individuals. For example, there are situations where a person may be injured due to an accident or medical procedure and ultimately receive a large monetary award for the injuries they suffer. Sometimes the injuries also result in an incapacity that would allow the person to qualify for benefits such as Medicaid or SSD if they did not have any personal assets. In order to prevent the monetary settlement from disqualifying the person from receiving the benefits, the settlement proceeds can be placed into a SNT. The SNT trustee can then use the SNT funds in his discretion to provide additional care and benefits which are not provided through the government payments.

Many situations where a SNT is needed may involve Court proceedings such as Article 81 Guardianships in the Supreme Court or Estate Administration in the Surrogate’s Court. In these matters, the Court is asked to authorize and allow the creation of the SNT and the transfer of the funds to the SNT trustee. Court authorization allows the funds to pass directly to the trust and avoid having the incapacitated person receive these monies which would otherwise result in the disqualification or termination of the governmental benefits.

A recent case in the Nassau Surrogate’s Court is a typical example of the use and benefit of a SNT. Matter of Krushnauckas, decided by Surrogate Edward McCarty III on June 28, 2013, and reported in the New York Law Journal on August 8, 2013, concerned the estate of an individual, Adrienne, who died intestate leaving a daughter named, Michele. Michele was 56 years of age and was mentally retarded and was receiving governmental benefits in the form of Medicaid and Supplemental Security Income. Michele’s Property Management Guardian was the Public Administrator who requested that the Court approve a SNT for the approximately $400,000 estate distribution that Michele was entitled to receive. By placing the inheritance into the SNT, Michele’s Medicaid and SSI would not be affected. After reviewing the general benefits and reasons for establishing a SNT along with some issues regarding payback of benefits, the Court authorized the establishment of the trust.

The effective planning and use of a SNT in Article 81 Guardianship proceedings and Estate Settlement matters can create tremendous benefits and promote the quality of life for persons suffering from disabilities and incapacity.

May 22, 2013

New York Guardianship Can Be Contested or Based Upon Consent

by Jules M. Haas

New York Guardianship proceedings are controlled by Article 81 of the New York Mental Hygiene Law (“MHL”). The New York Probate Lawyer Blog has provided numerous posts regarding issues concerning this type of court proceeding.

The essence of a Guardianship proceeding is to determine whether the appointment is needed to assist a person with personal needs or property management. MHL Section 81.02(a)(2) provides that a Guardian can be appointed when the alleged incapacitated person (“AIP”) either “agrees to the appointment” or if the AIP is found to be “incapacitated”. In most proceedings, the determination of incapacity is the central focus of the Court hearing. The statute requires “clear and convincing” evidence to find incapacity. A court hearing involves many different participants which may include the petitioner (the person who commences the Court case), the AIP, a Court Evaluator, a Court-appointed attorney who represents the AIP, New York State Mental Hygiene Legal Service and the local Medicaid office such as the New York City Human Resources Administration. Also, family members and friends of the AIP may become participants if they intervene in the proceeding.

If the AIP opposes the appointment of a Guardian, the Court may hear the testimony of many witnesses and may review numerous documents with regard to its consideration of the necessity of an appointment. All of the aforementioned participants play an important role in the Court case and in providing the Court with all the information needed to make a final determination. In Contested Guardianship Proceedings, the Court wants to fully understand the situation and circumstances concerning the AIP so that it can assess whether the statutory mandate of “incapacity” has been shown.

It should be recognized that even in a case where “incapacity” is beyond dispute, the Court requires a hearing and the presentation of evidence regarding the need for the appointment. New York Guardianship Attorneys know that in such matters the Court will want to hear testimony from the petitioner and receive evidence of the AIP’s condition from a social worker or doctor or in some other acceptable form to document the basis for the Guardian’s appointment.

As noted earlier, MHL 81.02(a)(2) allows the appointment of a Guardian where a person consents to the appointment. Consentual guardianships appear to be the exception rather than the rule since there is always the issue as to whether the AIP has the capacity to make a knowing consent. However, there are occasions when the Court will find that consent is appropriate. Such was the situation in a recent case decided by Bronx Supreme Court Justice Alexander W. Hunter entitled “Matter of the Guardian for L.J.L.” decided on May 6, 2013 and reported in the New York Law Journal on May 17, 2013. In L.J.L. the Court held a hearing and recognized that Article 81 of the MHL does not provide any statutory guidance to assist the Court in deciding whether a person has the capacity to consent to a Guardian. However, after considering all of the evidence presented, the Court in L.J.L. found that the AIP had capacity to consent and appointed a Special Guardian of the person and property of the AIP for the limited period of one year.

March 13, 2013

A New York Guardianship Based Upon Consent Does Not Constitute Incapacity

by Jules M. Haas

Article 81 of the New York 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 published numerous posts regarding many different aspects of the Guardianship laws.

One of the main requirements for the appointment of a Guardian is that the Court must find that a person is “incapacitated” (MHL Section 81.02). However, the statute also provides that the Court may appoint a Guardian where a person “agrees to the appointment”. The vast majority of Guardianship cases typically involve a situation where a person is found to be incapacitated rather than just agreeing to such appointment. In fact, there appears to be sort of an inconsistency between having to declare someone to lack capacity while at the same time allowing them to consent or agree to have a Guardian.

Most recently, Justice H. Patrick Leis, III (Supreme Court, Suffolk County) confronted this issue in Matter of Buffalino which was decided on March 6, 2013 and reported in the New York Law Journal on March 15, 2013. In Buffalino, a person identified as “Mr. D.”, who had been suffering with brain cancer, consented to the appointment of a Guardian. At that time, the Court found that Mr. D had the capacity to agree to the appointment. Thereafter, Mental Hygiene Legal Service, on behalf of Mr. D., sought to discharge the Guardian and the Guardian sought to expand his powers and keep the Guardianship in place.

The Court recognized that Article 81 did not clearly define the test to be used to decide whether someone has the capacity to agree to have a Guardian appointed. The Court clearly recognized that determining capacity to consent is not the same as the full review required by a Court hearing to show incapacity and that a finding of capacity to consent does not automatically result in a determination of incapacity.

After reviewing all of the evidence presented, the Court in Buffalino decided that the current Guardian could not demonstrate that Mr. D. required a Guardian and, therefore, discharged the Guardian.

The Buffalino case shows the problems and limitations that may be encountered when a Guardianship is based upon the consent of the person who is disabled. There appears to be an absence of certainty and the long-term ability of the Guardian to act on behalf of the ward. Due to these limitations and the inherent difficulty of determining whether an alleged incapacitated person has at least enough capacity to consent, there are generally few cases where the Guardianship is allowed based upon consent.

Unfortunately, the necessity for a Guardian where a person lacks capacity pervades both the rich and less fortunate. Recent events have been reported concerning Guardianships for film stars Mickey Rooney and Zsa Zsa Gabor. Bill Hetherman reported on March 4, 2013 in the Daily News.com that a probate court judge allowed Mickey Rooney’s Conservator to sell his million dollar home. In an article reported in mydesert.com on February 24, 2013, it was reported that a Court extended the Conservatorship over Zsa Zsa Gabor.

March 6, 2013

New York Guardianships End Upon the Death of the Incapacitated Person

by Jules M. Haas

New York Guardianship Attorneys are familiar with Article 81 of the Mental Hygiene Law (“MHL”) which provides the statutory provisions governing Guardianships in New York. When a person is determined to be incapacitated and a Guardian is appointed for property management or personal needs, the Court will issue an Order and Judgment specifying the Guardian’s duties and powers. Thereafter, the County Clerk will issue a Commission which is the formal certification of the Guardian’s appointment.

A Guardianship is generally ended upon the death of the incapacitated person. The Court Order and Judgment usually sets forth the procedures that are to be followed when the incapacitated person dies. These requirements typically re-state portions of the MHL law. For example, MHL 81.44 entitled “Proceedings upon the death of an incapacitated person”, contains a number of requirements including that within twenty (20) days after the incapacitated person dies a Guardian must send a statement of death to the Court examiner and the estate personal representative. Also, within 150 days of death the Guardian must serve a statement of assets and deliver all guardianship property to the estate personal representative.

In addition to the requirements of MHL 81.44 other sections of the law also relate to post-death procedures. MHL 81.21(a)(14) allows a Guardian to pay funeral expenses for the incapacitated person and MHL 81.21 (a)(20) gives the power to “defend or maintain any judicial action or proceeding to a conclusion until an executor or administrator is appointed.”

As stated in MHL 81.44, the Guardian is required to prepare and file a final report or accounting. As can be seen, accepting an appointment as Guardian involves a great deal of responsibility. Both before and after the death of the incapacitated person, the Guardian must maintain detailed reports to be filed with the Court regarding the person’s assets, income, expenses and general welfare. When an incapacitated person dies, all of this information transfers over to the estate representative who must review the Guardian’s transactions and determine whether to provide final approval or acceptance of the Guardian’s conduct. If the estate representative, such as an Executor or Administrator, feels that the Guardian did not act properly, objections can be filed to the Guardianship Accounting and the Court will determine whether any corrections or other remedy is required.

Guardianship and estate proceedings often interconnect especially since many Article 81 Guardianship matters concern older individuals who have become disabled due to physical illness or other conditions such as dementia. As a Guardianship and Estate Lawyer I have represented individuals involved in all of these types of proceedings. Sometimes my clients have been involved in Guardianship proceedings and then have requested that I assist with representation in probate or administration matters after the incapacitated person has died.

February 20, 2013

New York Incapacitated Persons Must Be Given Proper Legal Notice

by Jules M. Haas

New York Court proceedings involving Incapacitated Persons require careful scrutiny by the Court. When a person who lacks capacity is a party to a legal action such as a defendant or respondent, it is imperative that such person’s rights are protected since their ability to defend themselves is impaired.

In the typical Guardianship Proceeding under Article 81 of the Mental Hygiene Law (“MHL”), the Court will appoint either a Court Evaluator or an attorney to represent the Alleged Incapacitated Person (“AIP”). Sometimes the Court will appoint both an attorney and a Court Evaluator. MHL Section 81.10 entitled “Counsel” sets forth the circumstances in which an attorney will be appointed by the Court for the AIP. MHL 81.09 entitled “Appointment of Court Evaluator,” discusses such appointment. While a Court Evaluator does not act as the attorney for an AIP, the Evaluator will interact with the AIP and perform an investigation for the Court and can, among other duties, determine whether the Court should be informed to appoint an attorney for the AIP. All in all, the MHL statutes provide for a number of avenues to insure that the AIP is protected in the Court proceedings.

Serious issues arise, however, when a person who is suffering from an incapacity becomes involved in Court proceedings that are not covered by the MHL. For example, it is not uncommon for such a person to be ill and hospitalized or affected by dementia or Alzheimer’s disease. Due to these types of circumstances, a person may forget, or be unable, to pay bills such as their rent or mortgage. Non-payment of these items will eventually result in lawsuits for eviction or foreclosure. Unfortunately, someone who is sued by a landlord or mortgage company may have no one around to help them or to seek the appointment of an Article 81 Guardian. In such cases the impaired person is completely vulnerable and often unable to defend themselves in an ordinary eviction or foreclosure action. In these cases if the Court is aware of a person’s disability the Court has the authority to appoint a limited guardian to protect a person’s interest in the particular lawsuit. Section 1201 of the New York Civil Practice Law and Rules allows a Court to appoint a Guardian ad Litem for an adult person who is “incapable of adequately prosecuting or defending his rights.”

In many instances the Court may be unaware of a person’s condition since the person, due to lack of understanding or ability, merely defaults and does not appear before the Court to represent his interests. In a recent case entitled Financial Freedom Acquisition LLC v. Evelyn L. Jackson, the Honorable Charles J. Markey (Supreme Court, Queens County), in a decision dated December 24, 2012 and reported in a New York Law Journal on January 29, 2013, dismissed a foreclosure lawsuit against an individual who had been in a nursing home at the time of the Summons and Complaint were allegedly served on her. After an extensive investigation by the Court appointed Guardian ad Litem, the Court found that the property owner lacked the mental capacity to understand the Court papers and it was questionable whether the Court papers were properly served upon the homeowner in the nursing home.

As a New York Guardianship Attorney, I have represented many clients involved in Article 81 proceedings. Sometimes, these proceedings are precipitated by other Court actions such as landlord/tenant evictions or foreclosure lawsuits that require the appointment of a Guardian to help protect the rights of an AIP. In these matters, it may be that multiple Court actions are occurring at the same time and quick action is needed so that an AIP’s home is not lost through no fault of their own.

January 8, 2013

New York Guardianship Laws Can Provide a Safety Net for Elderly Individuals

by Jules M. Haas

New York Guardianship Laws are contained in Article 81 of the Mental Hygiene Law (MHL). These statutory provisions are utilized in many situations where a person in need is Alleged to be Incapacitated. Quite often the Alleged Incapacitated Person (“AIP”) is elderly and is suffering from the effects of a sudden medical condition such as a stroke or cardiac arrest or the long term deterioration of mental capacity due to dementia.

Whatever the circumstances may be, the family or friends of an elderly individual who loses the ability to attend to Activities of Daily Living, can follow the procedures outlined in Article 81 and attempt to have a Guardian appointed. New York Guardianship attorneys provide guidance to their clients who want to petition the Court for the appointment of a Guardian of the Person or Guardian for Property Management.

The Guardianship law provides a sort of safety net for persons lacking capacity, particularly in the case of the elderly. MHL Section 81.06 entitled “Who may commence a proceeding”, allows a Guardianship Petition to be commenced by just about anyone who has a concern about the AIP including anyone who resides with the AIP and “a person otherwise concerned with the welfare of the person. . . .” While petitions for Guardianship are usually commenced by family members, the proceedings are sometimes started by a hospital, a nursing home or a governmental agency such as the New York City Department of Social Services where Adult Protective Services provides community intervention. By having an expansive list of individuals and entities that can intercede on behalf of an AIP, there is a greater possibility that an AIP can receive Court intervention and protection particularly where no family member exists or the AIP’s family will not become involved.

A recent article in FoxNews.com published on December 28, 2012 describes the situation of the elderly in China where the national legislature amended its laws to require that adult children visit their elderly parents “often” or run the risk of being sued by the parent. According to the article, the law was instituted due to a number of factors including increased elderly population in China where the social safety net is lacking and there is a limit on family size which creates a large financial burden for elderly care on just a single child.

One can only imagine the plethora of lawsuits that would deluge the Courts if such a law was enacted in New York. While Guardianship proceedings in New York may be formalistic by requiring Court papers and hearings in front of a Judge, the proceedings do provide a process to protect elderly persons from harm due to incapacity. Of course, Estate Planning prior to incapacity in the form of a Health Care Proxy, Living Will, Living Trust and Last Will is always the best course to follow in order to avoid the need for a Guardianship.

December 12, 2012

New York Surrogate’s Court Proceedings May Require A Guardian Ad Litem

by Jules M. Haas

The New York Probate Lawyer Blog has discussed many of the proceedings that can arise in the Surrogate’s Court such as the Manhattan Surrogate’s Court and Nassau Surrogate’s Court. Each of the counties in New York State has its own Surrogate’s Court.

The various proceedings include Probate Proceedings, Intestate Administration Proceedings, Accounting Proceedings, Kinship Proceedings, and various other Miscellaneous Proceedings such as proceedings to revoke the appointment of a fiduciary.

In order for the Court to determine the issues in the cases that are filed, the Court must be certain that all parties interested in the case have received a proper notice and have had an opportunity to appear before the Court and protect their interests. Very often, the Notice that a party receives is a Citation or an Order and Show Cause. These Notices must be properly served on a party and provide information as to the date, time and place of the Court hearing.

It is not uncommon in many cases that one of the parties may not be legally capable to protect their interests or appear in Court. An infant (i.e., someone under age 18) or a person who is incapacitated cannot act for his or her own welfare. When these situations arise, there are a number of avenues that can be followed so that the incompetent party can participate in the Court proceeding.

With regard to an infant, he or she may appear by a Court appointed guardian of his or her property. See Surrogate’s Court Procedure Act (SCPA) Section 402. This section also provides that an incapacitated person may appear by a Court appointed guardian. Article 81 of the Mental Hygiene Law provides an extensive procedure for the appointment of a Guardian of the person and property for an incapacitated person.

When an infant or other disabled person has not had a Guardian appointed to represent them or when the Court feels that such Guardian cannot adequately represent them, the Court can appoint a Guardian ad Litem. SCPA 403 provides for the appointment of a Guardian ad Litem selected by the Court but also provides a procedure whereby the Guardian ad Litem can be nominated by an infant over 14 years old or his parent or guardian. Of course, such nomination is subject to approval and appointment by the Court.

In a recent case entitled a Will of Nanaline Duke, decided by Manhattan Surrogate Nora Anderson on November 28, 2012 and reported in the New York Law Journal on December 10, 2012, the Court allowed the family members to nominate the Guardian ad Litem.

Typically, the Guardian ad Litem will act as the representative of the person under disability and protect his or her interest in the Court case. SCPA 405 provides the procedure for the Guardian ad Litem to be paid for services rendered.

Estate Litigation involves many complex issues and procedures. As a New York Estate Lawyer I have represented many clients where the Court has appointed a Guardian ad Litem to represent a party’s interest. I have also acted as the attorney for Guardians who are acting on behalf of incapacitated individuals. For example, in a situation where a decedent dies intestate and his or her sole heir is incapacitated, I have petitioned the Court to appoint the sole heir as an Article 81 Guardian who then had the authority to act as the Administrator of the decedent’s estate.