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shutterstock_635914376-300x144The appointment of an Article 81 Guardian in New York is a serious process.  Each case begins with the preparation of a Verified Petition which provides details regarding the condition and circumstances of an alleged incapacitated person (AIP).  The Court needs to be informed about the person’s family, assets and overall ability to handle activities of daily living.  Additionally, information regarding the petitioner and his relationship with the AIP is important.

Also, the petition must provide details regarding any advance directives such as a power of attorney, living trust or health care proxy.  The Article 81 statute provides a number of provisions to insure that the Court is fully informed and that the rights of the AIP are protected.  There is always a concern that a Guardianship may be used to take advantage of someone who cannot protect their own interests.  Mental Hygiene Law (MHL) Section 81.09 entitled “Appointment of court evaluator” details the process for the designation of such person.  Essentially, a court evaluator is someone chosen by the Court to investigate the factual background of the Guardianship case as an impartial observer.  After the investigation is completed there is a report presented to the Court for review along with various recommendations.  The recommendations relate to whether a Guardian should be appointed and, if so, who should be appointed.  MHL 81.09 provides a long list of the Evaluator’s duties which includes interviewing the petitioner and other persons involved in the case.  Also, the Evaluator explains to the AIP the possible consequences and the nature of the Guardianship proceeding.

Although the personal medical records of an AIP may be privileged and not disclosed in a hearing, the Evaluator may obtain permission from the Court to review these items.

shutterstock_1465659569-300x201In situations where a person is in need of assistance with handling personal needs or property management, the New York law provides for the appointment of a guardian.  Article 81 of the Mental Hygiene Law (MHL) contains the statutory and procedural rules regarding guardianship appointment and operation.

Essentially, under MHL 81.02, a guardian may be appointed when it is found necessary to provide for a person’s personal needs or property management.  Usually, a determination of incapacity is needed.  Incapacity must be shown by clear and convincing evidence and involves a finding that a person will suffer harm because they cannot understand and appreciate the extent of their disability.  The New York Probate Lawyer Blog has published many articles discussing different aspects of the guardianship law and process.

A guardianship must be commenced in the Court and all interested parties need to be notified.  Typically, the Court will appoint an attorney to represent the alleged incapacitated person and also a Court Evaluator.  The Court Evaluator investigates the facts and circumstances surrounding the guardianship petition and provides the Court with a report and recommendations.  MHL 81.21 lists various property management powers which can be given to the guardian.  MHL 81.22 lists various personal needs powers which a guardian may have.

Probate-300x201The New York Probate process is utilized in order for a Last Will and Testament to be admitted to probate.  When this procedure is successfully completed, the Surrogate’s Court issues a Decree which essentially validates the provisions of a Will.  The Probate Decree also usually provides that letters testamentary should be issued to the proponent of the Will which is typically the person designated in the document to be the Executor.  Letters testamentary is the paper which sets out the authority of the Executor to handle estate affairs such as the collection of assets, payment of debts and claims, and filing of estate tax papers.  The executor has the fiduciary responsibility to settle the estate.  The New York Probate Lawyer Blog has published many articles regarding the requirements to probate a Will.

As discussed in previous blog articles, the primary document submitted in this process is the probate petition.  Forms of the petition can be found on the internet as part of the official New York Surrogate’s Court forms.  The petition requires that certain information be provided to the Court.  This data includes identification of the decedent, the petitioner, the date of and witnesses to the Will.  Additionally, the petition requires that the names and addresses of all of the decedent’s distributees (next of kin) be listed, as well as the information regarding the persons named in the Will.  This listing of all of the interested parties provides the Court with assurance that everyone who is involved with the Will has notice of the probate matter and that the Court can secure proper jurisdiction over all parties.

It is not uncommon that one or more of the interested parties is incapacitated or incompetent to represent their own interests.  A person may be a minor or suffering from a condition such as dementia.  There is a separate paragraph in the probate petition to provide the details regarding such person under a disability.  In these cases, the Court has the ability to appoint someone, known as a Guardian ad Litem, to represent the interests of the disabled person in the probate case.  The Court typically appoints an attorney to represent the parties’ interests.  The New York Civil Practice Law and Rules Section 1201 provides that infants can be represented by a Guardian ad Litem as well as an adult who does not have the capability of defending or prosecuting his rights.  Of course, if the person already has a Court-appointed Guardian, the Court may allow such appointee to represent their interests.

shutterstock_571088005-300x200In order for a Last Will and Testament to be admitted to Probate, the Surrogate’s Court must be presented with all of the papers needed to satisfy the requirements of the Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act.  The document which initiates the probate process is the Petition for Probate.  This paper contains detailed information regarding the decedent, the Last Will, an estimate of the estate value, the names and addresses of the decedent’s distributees and the persons named in the Will.

The New York Probate Lawyer Blog has published many articles concerning the requirements for probating a Will.  EPTL Section 3-2.1 entitled “Execution and attestation of wills” sets forth the mandated requirements for the due execution of a Will.  Prior to the COVID pandemic, the execution of a Will prepared and supervised by an attorney was a relatively straightforward process.  In short, the attorney, the attesting witnesses and the testator would gather together and have the various signatures applied along with a notary for a witness affidavit.  However, due to COVID this social interaction was prevented and New York passed certain legislation which allowed for remote execution of Wills.  However, the remedial statute presented explicit guidelines which, if not complied with, may compromise the validity of the Will.

A recent Queens estate case decided by Queens Surrogate Peter Kelly on February 23, 2022 entitled Estate of Holmgren dealt with the probate of a COVID rule Will.  In Holmgren, the Court reviewed New York Executive Order (202.14) which allowed remote execution.  This Order, as found by the Court, did not replace the requirements of 3-2.1.  Instead, the Court noted that the Order allowed the “use of audiovisual technology to satisfy the ‘presence’ requirements contained in the statute.”  The Surrogate went on to review in detail the various rules in the Order which needed to be followed to allow a COVID-type Will execution to form a basis for admitting a Will to probate.

20200522-Estate-Planning-300x200Estate planning in New York is important to preserve assets and insure a proper distribution after death.  The New York Probate Lawyer Blog has published many articles concerning planning an estate.  These articles have included discussions about Last Wills, Living Trusts, Health Care Proxies, Living Wills and Powers of Attorney.  It would seem that preparing a plan is fundamental.  There are also many articles in the Blog concerning Article 81 Guardianships.

Many individuals assume that if they are not considered to be wealthy that engaging in estate planning is a waste of time.  Nothing could be further from the truth.  In fact, as we have seen, even individuals who accumulate a fortune sometimes fail to adequately provide any planning.  As a result, their estates and families suffer tremendous post-death consequences.

A recent post at Kiplinger.com entitled “Prince’s Estate is a Royal Mess:  5 Ways You Can do Better”, dated February 5, 2022 and written by Jack R. Hales, Jr., J.D., describes the problems faced by the late pop star’s estate.  Apparently, Prince did not have a Will.  In New York, if you do not have a Will, the distribution of your assets is controlled by the laws of intestacy.  An intestate estate is distributed to a decedent’s next of kin in the order of priority set forth in Estates, Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.”  As pointed out in the article, a Will allows a person to determine their testamentary plan.  Additional considerations include dealing with minor children and the creation of trusts.  Of course, creating a Will allows a testator to specifically identify particular aspects of estate distribution and create detailed directions to deal with these matters.

After a person dies, there is a need to settle the estate of the decedent.  If the decedent prepared a Last Will and Testament, then the Will needs to be probated.

The New York probate process can be complicated, especially if there is a Will Contest.  One of the most important initial steps in Will probating is determining the identity of the decedent’s next of kin, who are also known as distributees.  Surrogates’ Court Procedure Act (SCPA) section 103(14) defines “Distributee” as “any person entitled to take or share in the property of a decedent under the statutes governing descent and distribution.”  The probate petition must contain information as to the names and addresses of the distributees since they are among the persons entitled to receive notice regarding the commencement of the case.  They also have a right to contest the Will since the distributees receive an intestate share of an estate if there is no Will. Service of process is important because the probate of a Will is not valid against interested persons who were not properly notified about the case.  The New York Probate Lawyer Blog has extensively discussed probate and Will contests in earlier posts.

A person filing a probate petition with the Surrogate’s Court needs to refer to SCPA section 1410 entitled “Who may file objections to probate of an alleged will”. Under this statute, if a person who is interested in an estate would be “adversely affected” if a Will is probated, such person may be entitled to file objections to the Will.  The statute must be examined carefully in each case to ascertain the identity of interested parties.  Estate litigation is complicated.  In addition to distributees, persons who may have received bequests in earlier Wills, but who are now disinherited in a later Will being offered for probate, may be necessary parties who must receive notice (a citation) in the proceeding.

Estate Litigation in New York can arise in connection with many different issues. The Surrogate’s Court is a forum in which matters concerning decedents’ Wills and Trusts are typically dealt with.  The New York Probate Lawyer Blog has discussed in many posts the various documents that comprise a persons estate plan.  These papers include a Last Will, Living Will or Revocable Trust, Health Care Proxy and Living Will.

It is common that a person may create a Living or Revocable Trust along with what is known as a pour-over Will. Briefly stated, the main reason for the creation of a Revocable Living Trust is to avoid probate. Also, the trust provides a means for property management in the event the trust Grantor becomes disabled. Continue reading

Manhattan Guardianship of an incapacitated person, as well as proceedings throughout New York, requires a Court hearing and a determination that clear and convincing evidence has been presented that a Guardian is necessary. Article 81 of the New York Mental Hygiene Law (“MHL”), sets forth the substantive and procedural guidelines for the appointment of a property management guardian and a personal needs guardian.

Among the many considerations and determinations that the Court must make in these proceedings is the selection of the proper person or entity to act as Guardian. MHL Section 81.19, entitled “Eligibility as guardian,” provides the Court with some direction in selecting an appropriate Guardian.

As a general matter, appointment of family members of the incapacitated person is usually preferred. In many cases, the Petitioner in the proceeding is a close relative such as a child or a spouse. Typically there is a long history of family closeness and caring that the Court will recognize in making its selection.

However, despite this preferential treatment, family members can face obstacles to appointment. In many cases the Court may require that the Guardian file a Bond with the Court. A Bond is similar to an insurance policy. It is obtained from a surety company that insures that if the Guardian misappropriates any of the incapacitated person’s funds, the surety company will cover the loss. Unfortunately, sometimes a family member may not qualify to obtain a bond due to a poor credit history or criminal background.

Also, a Court may refuse to appoint a family member as a Guardian where there is a conflict of interest between the family member’s interests and those of the incapacitated person or other family members.

Another instance where a family member may not be appointed is where some family conflict or hard feelings exist between competing family members or between the prospective appointee and the incapacitated person. In a recent case entitled Matter of Ella C., decided by the Honorable Betsy Barros on December 14, 2011 (Supreme Court, Kings County) and reported in the New York Law Journal on January 12, 2012, the Court was presented with a petition filed by three of the four children of the alleged incapacitated person. Following a hearing the Court found that the appointment of a Guardian was necessary but did not appoint any of the children, each for various reasons, including improper handling of their mother’s financial affairs, animosity between them and their mother, and “mixed loyalties.”

Queens Guardianship attorneys and lawyers representing petitioners and families in Guardianship cases throughout New York, must be aware of the requirements to have a Guardian appointed and also the qualifications that are needed for someone to be selected by the Court. As discussed above, just being a family member may not be enough in all situations to be named by the Court as a property management or personal needs Guardian.

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The proper execution or signing of a Last Will in New York requires that the formalities provided by statute be followed. The New York Probate Lawyer Blog has previously discussed these rules. The basic “formal requirements” for the signing and witnessing of a Will are set forth in Estates, Powers and Trusts Law section 3-2.1. Among other provisions, subsection (4) of the statute provides that “there shall be at least two attesting witnesses. . . .”

Thus, when a person dies and his or her Will is filed with the Surrogate’s Court for probate, two of the attesting witnesses “must be produced before the Court and examined before a Will is admitted to probate. . . .” Surrogate’s Court Procedure Act Section 1404(1).

In most uncontested matters an affidavit signed by the witnesses at the time of the Will execution will satisfy the requirements for examining the Will witnesses. This is the so-called self-proving Will. However, there are instances where a witness affidavit is not prepared at the Will signing or a Will contest requires actual live testimony of the witnesses.

Recently, Surrogate Edward W. McCarty III, of the Surrogate’s Court, Nassau County, was presented with a Will that was 19 years old and the petitioner was unable to provide witness affidavits or testimony since one witness was deceased and the other witness could not be located. In Will of Jean Santoro, decided on May 3, 2011 and reported in The New York Law Journal on June 3, 2011, the Surrogate noted that the decedent’s Will could not be admitted to probate as an “Ancient Document” since it was “less than 20 years old.”

However, the Court became aware that the attorney who drafted Jean Santoro’s Will, and who was one of the witnesses, had previously died and that his Will had previously been admitted to probate by the Court. Therefore, Surrogate McCarty ruled that since the deceased witness’ signature was already on file with the Court, the petitioner could obtain an expert opinion as to the signature as a witness to the Will in question. The Surrogate also provided that an affidavit from a relative as to the signature of the decedent, Jean Santoro, would help prove the Will’s genuiness.

The Santoro case illustrates that Courts generally favor finding the validity of a Will so as to carry out a person’s estate plan and preferences for the distribution of his or her property. The Santoro case also shows the importance of up-dating a Will so that the persons involved with its execution are available in the event their testimony is required. Additionally, proper estate planning involves a periodic review of Will and trust provisions and beneficiaries and the selection of executors and trustees.

As noted, it is common for Courts to validate Wills to further a person’s apparent testamentary desires. In a recent article by Arden Dale appearing in the Wealth Advisor on June 20, 2011 entitled California Court Gives ‘Rogue’ Wills More Validity, it was reported that a California court up-held a Will that was written by a decedent’s friend while the decedent dictated its term. While courts may tend to overlook minor errors and approve “informal Wills”, the article points out that “financial advisors still urge clients to get professional help if they want to change their estate plan.”

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The appointment of a Guardian for an incapacitated person is provided by the guidelines enacted in Article 81 of the Mental Hygiene Law (MHL). The New York Probate Lawyer Blog has discussed many of the aspects involved in New York City Guardianship cases such as Guardianship powers and the petition that is filed with the Court requesting appointment.

A couple of recent Court decisions in which a Guardian was appointed are typical examples of the many factors and issues that are considered before an appointment is actually made.

In Matter of C.T., reported in the New York Law Journal on June 23, 2011, Justice Alexander W. Hunter of the Bronx Supreme Court issued a decision dated June 10, 2011, in which he appointed the sister of the alleged incapacitated person (“AIP”) as Guardian of his person and property. The Court noted at the outset of the decision that the AIP and other parties were properly served with the Order to Show Cause and petition. As referred to by the Court, section 81.07 of the MHL provides for very specific requirements regarding notice and the service of papers on interested parties. If these requirements are not complied with the Court would lack proper jurisdiction to conduct a hearing.

The AIP in Matter of C.T. had assets in excess of $2 million dollars. It appears that as part of the sister’s petition to the Court she requested that as Guardian she be allowed to provide for Medicaid planning. Such planning typically involves the transfer of the AIP’s assets to a family member so that the AIP can qualify for government benefits. Since the Court found that the plan presented by the sister for preserving the AIP’s assets was “vague”, the Court decided that such plan would require further Court approval before implementation. MHL section 81.21 provides for the granting of power to a Guardian to transfer assets. However, as was recognized by Judge Hunter, there is always a concern that notwithstanding benefits that may be obtained by a family by preserving assets through transfers, assets also need to be retained and used for the care and comfort of the AIP.

In a different case, there was an interesting issue regarding the potential conflict of interest between an AIP and the proposed Guardian. In Matter of A.M., a case reported in the New York Law Journal on May 12, 2011 and also decided by Judge Hunter on April 25, 2011, the petitioner was the brother of the AIP. It appears that the parents of the AIP left her over $1 million dollars in a testamentary trust and that the brother was the trustee. In the Guardianship proceeding, the brother was seeking only to be appointed as Guardian for his sister’s personal needs. The Court found that the brother was not eligible to be appointed pursuant to the requirements of MHL section 81.19 (“Eligibility as guardian”), because of the potential monetary conflict of interest. Among other problems, the Court was concerned that the potential of the Guardian selling the AIP’s house “creates financial gain” for the brother. Also, the Court stated that “Another motivation that cannot be ignored is that Mr. M [the brother] may no longer desire to directly care for his sister as he is currently doing. Placement in a facility and sale of the home will allow him to return to Florida where he lives. This also constitutes a conflict of interest in that Mr. M may choose his own well-being over that of his potential ward.”

As is shown by these recent Court decisions, Guardianship proceedings can be quite complex and involve issues of incapacity, transfers of assets and potential conflicts of interest that may impact on the appointment of a Guardian. Guidance from an experienced attorney is essential in these matters.

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