New York Probate Lawyer Blog
Article 81 of The New York Mental Hygiene Law (MHL) entitled “Proceedings For Appointment Of A Guardian For Personal Needs Or Property Management”, provides the substantive and procedural requirements for Guardianships in New York. The New York Probate Lawyer Blog has published many articles concerning issues relating to, and aspects of, Guardianship law.
The touchstone provision of Guardianship is a determination that a person is incapacitated and requires the appointment to provide for his personal needs and/or property management. This basic pronouncement is found in section 81.02 of the MHL which is entitled “Power to appoint a guardian of the person and/or property; standard for appointment”. Incapacity, which must be shown by clear and convincing evidence, exists when a person is likely to suffer harm when, according to the statute, a person cannot handle his property management or personal affairs and cannot appreciate and understand the consequences and nature of such disability.
As can be seen from the language of the statute, demonstrating that a person requires a guardian because they are incapacitated is not a clear, black or white issue. Capacity is based upon a person’s functional ability- how does the person handle activities of daily living such as personal hygiene, shopping, taking care of finances or medical needs, dressing oneself, paying bills, etc.
The intersection of the Guardianship law and elder abuse may at times seem apparent when an elder person cannot perform daily functions and becomes virtually reliant upon others to take care of all personal and financial aspects of life. The prospect of someone abusing this responsibility and taking advantage of an incapacitated person is tragically very common. In these cases, a Guardianship Court can step in and appoint an independent family member or other person to assume control and prevent any ongoing abuse. In fact, the Guardianship statutes, MHL 81.29, allows the Court to revoke any existing Power of Attorney or Health Care Proxy or other agreements which an incapacitated person may have entered into which are found to be improper or subject to abuse.
In view of the complexity of Guardianship appointment, a determination of incapacity is not always apparent or easy to demonstrate. An elderly person may appear at first glance to be functional and have cognitive and physical abilities which allow them to engage in their daily activities. However, there may exist hard to recognize disabilities which make an elderly person subject to undue influence or manipulation even to the extent of having an elderly person turn away from close family members or improvidently expend or transfer assets outside of normal parameters against their own best interests. Again, a Guardianship proceeding may be the only avenue for an interested relative or friend to attempt to intercede and seek Court protection.
In a recent article in the latimes.com by Cerys Davies dated March 18, 2025 entitled “11 years after Mickey Rooney’s death, prized memorabilia from his estate will be actioned”, the author describes how the late actor, Mickey Rooney, claimed he was a victim of elder abuse by his step-son who it was alleged stole millions of dollars from the actor. Mickey Rooney died over a decade ago but his plight is not uncommon.
I have represented clients in Guardianship cases in New York for over 40 years. These cases can be very complicated and the assistance of an experienced Guardianship lawyer can be essential. Do you have a question concerning Guardianship in New York. If so, call me now for a free confidential review of your issue. We provide reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estate 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 Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has questions regarding these matters, please contact me at (212) 355-2575 for initial free consultation.