Helpful Information Concerning The Appointment Of A New York Guardian For Incapacity

The statues concerning the appointment of a New York Guardian for personal needs or property management are located in Article 81 of the Mental Hygiene Law (MHL).  In order to have a Guardian appointed MHL 81.02 requires that the alleged incapacitated person either agree to the appointment or that the person be found to be incapacitated.

The New York Probate Lawyer Blog has posted many articles concerning the appointment process for Guardians and other aspects of Guardianship.  Briefly, there is the requirement that a petition be filed with the Court and that proper notice be given to interested parties.  An alleged incapacitated person has the right to oppose the imposition of a Guardianship and also the selection of the person appointed.  In these hearings the Court will focus on an individual’s functional limitations with regard to engaging in activities of daily living.

One interesting section of Article 81 is MHL 81.29 entitled “Effect of the appointment on the incapacitated person”.   This section is important since a person who is found to be incapacitated retains certain civil rights.  Also, there may be aspects of the person’s pre-appointment actions which may need to be modified if they were tainted by the incapacity.

For example, MHL 81.29 provides that even though a Guardian is appointed, this does not conclusively mean that the person does not have capacity for other purposes such as executing a Last Will and Testament.  This section also allows the Guardianship Court to revoke or modify or amend prior executed powers of attorney or health care proxies if the Court finds that they were entered into when the person was lacking capacity.   There is also the judicial power to revoke or cancel contracts such as sales of real estate upon the same grounds.

Another important aspect of this statute is that the Court could annul a marriage if it determined that the matrimonial engagement was entered into at a time when the person did not understand or appreciate the nature of entering into the marriage.  The basis for the Court‘s power to enter into this personal realm is because the Courts view a marriage as a contract that can be annulled.

As a Guardianship attorney in New York, I have represented clients in these proceedings throughout the counties such as Queens County Guardianship, Kings County Guardianship, Manhattan Guardianship, Bronx Guardianship and Nassau County Guardianship.  These proceedings can be complicated and a determination as to lack of capacity, functionality, and the selection of a proper Guardian is not always easy.  Call me now for a free review and discussion of your Guardianship issue or problem.  We offer reasonable and flexible fee arrangements and personal representation.

New York Guardianship and 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 Queens County, 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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