New York Probate Lawyer Blog
Article 81 of the Mental Hygiene Law provides the statutes regarding the appointment of a property management and personal needs Guardian.
A Guardianship lawyer is aware that these proceedings focus on a number of factors before a Court determines that a Guardian should be provided.
First and foremost, the inquiry concerns the ability of the alleged incapacitated person (“AIP”) to handle his affairs. This examination focuses on the AIP’s functional abilities commonly referred to as the activities of daily living. Thus, a full review of the ability of the AIP to engage in functions such as personal hygiene, attending to personal health decisions, domestic functions such as cleaning and caring for a residence, engaging in financial matters such as paying bills, understanding the nature and extent of assets and appropriately dealing with everyday matters. As set forth in MHL Section 81.02, a Court can appoint a Guardian if it finds that it is necessary to provide for a person’s personal and financial needs, and that a person would suffer harm because they cannot provide for such needs and do not understand and appreciate that they are suffering from such disability. The New York Probate Lawyer Blog has published many articles concerning Guardianship matters.
An important requirement set out in MHL Section 81.02 is that any determination of incapacity must be based upon clear and convincing evidence. This standard is higher than most civil lawsuits where a preponderance of the evidence is usually sufficient to prevail.
Another significant aspect of Guardianship law is that the Court should consider whether the AIP has available other resources which may obviate the need for the formal appointment of a Guardian. Such available resources as defined in MHL Section 81.03 include powers of attorney and trusts. As a result, if an AIP has resources available that are sufficient to provide care and protection, then the Court may refuse to appoint a Guardian even if the person is incapacitated. This was the situation encountered in a recent Guardianship case entitled Matter of S.Z., decided on July 30, 2021 by Chemung Supreme Court Justice David Guy. In S.Z., a daughter of the AIP commenced an Article 81 proceeding regarding her mother. The Court appointed the New York State Mental Hygiene Legal Service to serve as Court Evaluator. The AIP was found to be incapacitated and was residing in a care facility. As it turned out, the AIP had given her husband a power of attorney a number of years before she became disabled. The evidence showed that the AIP was well cared for in the facility, and that the husband was not acting in any way harmful to the AIP. The daughter claimed that the AIP would be better off living in the home of the daughter rather than in the care facility institutionalized setting. However, the Court found that the daughter failed to provide any living plan or proof that moving the AIP would be in the AIP’s best interest. Thus, the Court dismissed the proceeding, finding that the AIP had sufficient resources in place for her care and that the daughter failed to demonstrate clear and convincing evidence to have her mother discharged to the daughter’s home.
I have represented many individuals in Guardianship cases. Representation by experienced counsel in these cases, especially where there are family disputes, can be essential. Call Me Now for a free confidential review of your Guardianship or estate case. We offer reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates 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 the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.