New York Probate Lawyer Blog
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.
MHL Section 81.10 also gives the Court the ability to appoint an attorney to represent the interests of the AIP. The Court Evaluator can recommend to the Court that an attorney be appointed. Also, the AIP can request that the Court appoint counsel. A Court-appointed attorney for the AIP assists the AIP with defending against the appointment of a Guardian when appropriate and acts as trial counsel during the course of any hearing.
Both a Court Evaluator and appointed counsel are entitled to be paid for their services. Most of the time, the Court will issue an award of fees at the end of the proceeding to be paid from the assets of the AIP. The Court has discretion in determining the amount of fees. Also, in the event a Guardianship petition is denied and no Guardian is appointed, the Court may direct that the Evaluator and counsel fees be paid by the petitioner. This possibility tends to discourage frivolous petitions since the cost of a dismissal can be very burdensome, particularly if there is a long hearing.
I have represented clients in Guardianship cases throughout New York for over 40 years. These cases can be complicated and the assistance of experienced counsel can be essential. Call Me Now for a free confidential review of your Guardianship matter. We offer reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.