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Did You Know That A Guardianship Proceeding May Not Be Needed If There Are Advance Directives

Article 81 of the New York Mental Hygiene Law (“MHL”) provides the statutory provisions covering the appointment of a Guardian.   A Guardian may be appointed for personal needs and also for property management.

The procedure set forth in the statute to commence a Guardianship proceeding is straight forward.  MHL section 81.08 states that there should be a petition that needs to include information regarding the alleged incapacitated person (“AIP”) such as name age and address and the AIP’s ability to engage in activities of daily living.

In order for the Court to appoint a Guardian it must find that the AIP is incapacitated or agrees to the appointment.  One interesting aspect of MHL section 81.02,  which is entitled “Power to appoint a guardian of the person and/or property; standard for appointment”, is that the Court is required to consider whether the AIP has other “available resources” that may be used rather than having a Guardian appointed.   Such resources are described in MHL section 81.03(e) and include nurses, aides and powers of attorney and trusts.

Therefore, if an AIP has arranged for others to assist with activities of daily living through appointments made in a power of attorney, a living trust or a health care proxy, the Court may dispense with the appointment of a Guardian.

As can be seen from the statute, it is important to engage in advance directive planning as well as estate planning.  Advance directives such as a power of attorney allow a person to select and sometimes direct the persons who need to make decisions for them if they become unable to do so due to illness or mishaps.

A recent Bronx Guardianship case decided by Justice Robert T. Johnson on August 22, 2019 recognized that available resources are important to consider.  In Matter of Gerken, a nursing home started a Guardianship case primarily because the AIP did not pay her bill to the nursing home.   The AIP alleged that she had given a power of attorney to her brother but could not locate the document.  She thereafter signed a new Power of Attorney.  However, the nursing home refused to discontinue the proceeding  notwithstanding the new Power of Attorney.  When the case was finally withdrawn, the nursing home acknowledged that it did not have sufficient proof to show by clear and convincing evidence that the AIP needed a Guardian.  The Court ordered that the nursing home pay the costs of the AIP’s attorney for the delays caused by the nursing home after the new Power of Attorney was signed.

I have represented clients in many Guardianship cases including Manhattan Guardianships, Brooklyn Guardianships and Queens Guardianships.  Call me now if you have a question regarding your issues and concerns.  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 30 years resolve issues relating to Guardianship probate and estate settlement throughout New York City including Brooklyn and Manhattan.   If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.

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