New York Probate Lawyer Blog
The appointment of a Guardian for the personal needs and property management of an incapacitated person is provided by Article 81 of the Mental Hygiene Law (MHL). There are many interesting aspects to Guardianship proceedings. MHL Section 81.02 requires that the Court needs to find clear and convincing evidence that a person is incapacitated.
There are many variations regarding the extent of incapacity of an Alleged Incapacitated Person (“AIP”). Some AIP’s require more assistance with activities of daily living than others. In other words, some AIP’s can function effectively to some extent and, therefore, do not need a Guardian to completely control their activities.One issue presented in many Guardianship hearings is the nature of the evidence that can be presented to the Court to demonstrate incapacity. A recent case decided by Chemung County Supreme Court Justice David Grey on June 15, 2018 entitled Matter of S.B. provides an extensive discussion of some of these evidentiary concerns.
In particular, the Court noted that in many New York Courts, an AIP cannot be forced to testify in the Article 81 trial. In the Matter of S.B. the petitioner wanted the Court to direct the AIP to undergo a medical evaluation. The Court refused to order the AIP to be the subject of a medical examination. The Court found that the MHL did not require such a forced procedure. The Court also referred to a person’s privilege of privacy between a patient and a doctor.
Another part of the S.B. case concerned whether the Court could order the AIP to allow visitation by one daughter before the actual granting of a Guardianship. The Court found that absent the appointment of a Guardian, it had no authority to require that the AIP engage in visitation with another person or even a family member.
In many hearings regarding Guardianship Attorneys will obtain testimony from persons who have personal knowledge regarding the AIP’s ability to engage in daily living activities. These persons can be friends or relatives of the AIP. Since medical information is privileged it is uncertain in any case whether such information would be allowed. Nevertheless, first hand accounts regarding the AIP’s cognitive and physical limitations are usually sufficient to satisfy the Court that a Guardianship is warranted.
I have represented many petitioners and parties in Guardianship cases. These matters can be complicated and the assistance of knowledgeable counsel can be essential. If you have a question or issue concerning an Article 81 Guardianship matter, call me now for a free review.
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: jules.haas@verizon.net, for an initial consultation.