New York Article 81 Guardianship Can Involve the Settlement Of Property Rights Between Spouses

The New York Probate Lawyer Blog has discussed many issues regarding Guardianship of the person and property of an incapacitated person. These issues can include, among other things, a determination of the assets owned by the incapacitated person and the powers granted to a Guardian with regard to the management of such property. Section 81.21 of the New York Mental Hygiene Law (MHL) sets forth various property management powers that a Guardian may be given by the Court.

In the many guardianship proceedings in which I have been involved, it was always essential to have a full understanding of the incapacitated person’s property so that the Court could be requested to provide proper authority for the management and/or disposition of the property in a final order. For example, it may be desired that property be transferred to a spouse or special needs trust so that the incapacitated person may qualify for governmental benefits such as Medicaid. Another consideration may be the long term support of the incapacitated person’s family. Section 81.21(a) 2 of the MHL allows the Court to provide an order directing that guardianship funds be used for such support.

The variety of property dispositions that occur in these proceedings are endless. In a recent case, In Re Donald L.L., 916 N.Y.S.2d 451, decided by the Appellate Division, Fourth Dept., on February 10, 2011, the Court upheld a Stipulation of Settlement entered into between a husband and the Guardian for his wife.

The Stipulation provided that the husband and wife would live separately, that their marital property would be divided between them as agreed, and that the husband would pay the wife maintenance and support. The Court found the agreement to be valid although it was not based upon the concept of equitable distribution involving the applicability of the Domestic Relations Law.

Proper estate planning with the help of a New York Estate Planning Attorney, including the preparation of a Last Will and Living Trust and advanced directives such as a Power of Attorney and Health Care Proxy, may avoid the necessity of a guardianship determination of incapacity. However, a good New York Guardianship attorney is needed when such proceedings can help a disabled person and his or her family deal with property management issues and personal care decisions in the absence of alternative planning.

I have helped many clients over the past 30 years resolve issues relating to Guardianship in New York, including Queens and Nassau Counties. 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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