A New York Guardianship Case May Require An Attorney For An Incapacitated Person

Guardianship cases in New York are controlled by Article 81 of the Mental Hygiene Law (MHL). When a person wants to commence a Guardianship proceeding, there are a number of papers that must be filed with the Court. The two essential papers are the Petition and the Order to Show Cause.

In the Petition, which is usually prepared with the assistance of a Guardianship Attorney, all of information regarding the Alleged Incapacitated Person (AIP) is provided. MHL Section 81.08 entitled “Petition”, lists the information that needs to be provided. These items include the name, address and age of the AIP and a description of the AIP’s ability to manage his activities of daily living. Also, the powers regarding property management and personal needs that are being sought should be specified. The AIP’s financial information should be provided, as well.The other primary paper to be submitted to the Court is a proposed Order to Show Cause. Upon receiving these papers the Court will review the Petition. If the Court is satisfied that the Petition sets forth a basis for the case to go forward it will complete and sign the Order to Show Cause. MHL Section 81.07 sets forth information that is to appear in the Order to Show Cause. This information includes the date, time and place where the Guardianship Hearing is to take place. The Court will also provide the name, address and telephone number of a Court Evaluator whom the Court appoints as well as information concerning an attorney that may be appointed to represent the AIP.

While MHL Section 81.11(b)(4) states that a party to the proceeding is entitled to be represented by an attorney whom he chooses, typically, the Court appoints an attorney to represent the AIP’s interest. The issue that is presented regarding the appointment of an attorney is whether the AIP has the capacity to make a decision to choose his own attorney. This may be problematic particularly where there are other parties involved in the case who might try to influence the AIP’s decisions.

A recent Nassau Guardianship Case involved this type of issue. In a case entitled Matter of Mazzeo, a privately retained attorney for an AIP sought to be substituted as counsel for the attorney appointed by the Court to represent the AIP. Nassau Supreme Court Justice Arthur Diamond, in a decision dated January 12, 2018, did not permit the substitution. The Court was not shown satisfactory proof that the AIP chose the private attorney independently from any influence by other parties in the case. The AIP was not found to have the needed understanding and capacity to make such a decision.

I have represented many families in Guardianship cases in New York City and Nassau and Suffolk. The matters can be complicated and involve questions regarding incapacity and the proper person to act as a Guardian.    New York Guardianship Attorney Jules Martin Haas, Esq. has been representing clients in New York Guardianship Proceedings throughout the past 30 years.  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 a free initial consultation.

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