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Article 81 of the Mental Hygiene Law (MHL) provides the statutory provisions for adult Guardianship. Pursuant to this statute the Court is given the authority to appoint a Guardian for personal needs and/or property management. The New York Probate Lawyer Blog has published many articles regarding Guardianship as well as estate and trust issues.

As provided in MHL section 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” a Guardian may be appointed if it is determined that a person is incapacitated. A finding of incapacity must be based upon clear and convincing evidence that a person will suffer harm because they cannot attend to their personal or property needs and they do not understand or appreciate their disability.

These cases are typically filed in the Supreme Court in the County where the alleged incapacitated person is located. So, if a person is hospitalized in Brooklyn or Manhattan, such County is where the matter will be filed. A Guardianship proceeding is commenced by filing a Verified Petition and an Order to Show Cause with the Court. The Petition sets forth all of the information regarding the alleged incapacitated person including the nature of his disability, assets, family and the circumstances requiring the need for the appointment. After reviewing all of the papers submitted, the Court will sign an Order to Show Cause which contains the date, place and time of the hearing. It also contains the name of the persons appointed by the Court to act as Court Evaluator and Counsel for the alleged incapacitated person.

Disputes arise all of the time following the death of a decedent.  These matters can take many different forms.  If a decedent left a Last Will and Testament issues may exist as to whether the Will is valid.  There may be questions as to due execution, testamentary capacity or undue influence.  These matters would be examined in the course of a probate proceeding in the Surrogate’s Court.

In the event a decedent did not have a Will, a proceeding for letters of administration would be initiated to settle the intestate estate.  Issues which may arise include the appointment of an administrator.  There may be heirs at law who filed competing administration petitions seeking their appointment as administrators.  Additionally, the identity of the estate heirs or distributees may be in doubt.  In such cases, a determination of kinship and a kinship hearing may be necessary.  Determining kinship may be complicated and require the services of a professional genealogist to search for records and lost or unknown heirs.  Also, genetic testing may be used to find out if parties are related.  The New York Probate Lawyer Blog publishes many articles regarding probate and estate administration.  Feel free to review the blog posts and my website for additional helpful information.

In a different context, estate problems can surface where a decedent made certain transfers of assets during life.  Although these lifetime transfers have been completed, surviving relatives may claim that the transfers were improper or that the transfers were part of an agreement whereby the transferred property was to be disposed of by the transferee and not kept for his sole benefit.  The scenarios in these matters are varied.  This is where the concept of a constructive trust arises.  It is best described by looking at a recent estate case entitled Versace v. Robinson, decided by Columbia County Supreme Court Justice Richard Mott.  In Versace, the litigants’ mother had owned real property.  Before her death, the mother transferred the property to the daughter and reserved a life estate.  The son asserted that the property was deeded solely to the daughter, and not to both children, to avoid any liens which might arise due to the son’s businesses.  The son also asserted that there was an agreement between the parties that when the mother died, the property would be sold and the proceeds paid equally to the son and daughter.  Of course, when the mother died, the daughter refused to recognize the son’s interest in the property or the agreement.

When proceedings are filed in Surrogate’s Court regarding a decedent’s estate, the primary focus is inevitably on the person who is, or is seeking to be, the estate fiduciary.  In cases of intestacy, there may arise issues regarding the qualification of the individual seeking to be appointed as administrator.  Similarly, if the decedent died leaving a Last Will and Testament, the person applying to be appointed as executor also must meet certain qualifications.

It is not usual for other family members or interested parties to file objections with the Court regarding the appointment of the petitioning party.  These issues may also arise during the course of estate settlement where persons who are estate beneficiaries seek to remove an already-appointed fiduciary due to claimed wrongdoing or breach of fiduciary duty.  Such alleged conduct can include loss or waste of estate assets, undue delay in settling estate affairs or conflicts of interest regarding the disposition of assets or inequitable treatment of beneficiaries’ interests.

In all of these types of cases, the Court is very cautious regarding the disqualification or removal of an administrator or executor.  There is great preference afforded to the choice of a fiduciary, such as an executor, by a decedent.  Also, there is a statutory designation as to whom has priority to be appointed as administrator of an intestate estate.

The 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.

In 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.

The 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.