Important Information Concerning a Guardian’s Powers

When a person becomes incapacitated, Article 81 of the Mental Hygiene Law provides for the appointment of a property management Guardian and a Guardian for personal needs. New York City Guardianship Lawyers are familiar with the statutes regarding Guardians and the need to provide clear and convincing evidence to have a Guardian appointed. The New York Probate Lawyer Blog contains numerous articles regarding Guardianship.

Once a Guardian is appointed, it is important to understand the powers that a Guardian has available to handle the Incapacitated Person’s (“IP”) affairs.  MHL Section 81.29 entitled “Effect of the appointment on the incapacitated person” sets forth some interesting directions. One of the statutory provisions contained in paragraph (d) of Section 81.29 is that the Court cannot revoke or invalidate a Will or a Codicil that was made by an incapacitated person.  In effect, when a Will appears to be the subject of undue influence or other issues that may emanate from the circumstances of incapacity, the ordinary path to deal with such issues would be a Will Contest in the Surrogate’s Court after the IP dies. This often leaves many of these issues unresolved for years while the IP is still alive.A recent Nassau Guardianship case decided by Supreme Court Justice Arthur Diamond on July 17, 2018 entitled Matter of Militana, concerned another interesting aspect regarding the limitations of a Guardianship.  In Militana, the IP owned numerous income producing real estate properties in New York. The IP had also executed a Last Will in which she specifically devised some of these properties to some of her children and grandchildren. However, some of these properties were sold by the Guardian in order to pay for the IP’s expenses. The Guardian then proposed to transfer all of the IP’s properties into a living Revocable Trust which would have provided for testamentary dispositions that were different from the terms of the Last Will which the IP had previously executed.

After reviewing all of the relevant facts involved and in light of the restrictions in MHL Section 81.29 which did not allow the Court to revoke or invalidate a Will of the IP, the Court rejected the Guardian’s request to allow the creation of the Revocable Trust and the transfer of the properties into the Trust.

As can be seen from Militana, the administration of a Guardianship can be very complex. There are often competing interests between the needs and best interests of an IP and the effect that the Guardian’s acts may have on the IP’s prior estate and financial plan.

I have represented many individuals in Guardianship cases. Call me now if you have a question or issue regarding the creation of a Guardianship or Guardianship Administration.  New York Guardianship Attorney Jules Martin Haas, Esq. has been representing clients in New York Guardianship Proceedings, throughout the past 30 years in New York, including Queens and Nassau Counties. If you or someone you know is involved with or has questions about a New York Guardianship matter, please contact me at (212) 355-2575 or email:, for an initial consultation.

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