New York Guardianship Cases May Involve Accountings By An Agent Under A Power of Attorney

Article 81 of the New York Mental Hygiene Law (MHL) contain the various provisions regarding the appointment of a Guardian for a person who is incapacitated.  The main title of this Article is “Proceedings For Appointment of A Guardian For Personal Needs or Property Management”.

The various sections of the statute provide both the procedure and the substantive law regarding Guardianship cases.  As can be seen from the title, the Court can appoint either a Guardian for property management or to assist with a person’s personal needs.  In most cases the Court will appoint both types.  The appointment very often will be for one person who then acts in both capacities.  MHL section 81.21 sets forth the powers of the property Guardian while MHL section 81.22 details the personal needs powers.

Many of the Guardianship cases concern issues dealing with a Power of Attorney.  Sometimes, a person who was appointed as an agent under a Power does not act properly or abuses his authority.  When a Guardianship proceeding is commenced the Court may be asked to review the agent’s actions.  Such review is important since the Court needs to determine wither a Guardian is required to try and recoup funds that were wrongfully administered.

A Power of Attorney is provided for under section 5-1501 of the General Obligations Law (GOL) and the statutes that follow such section.  It is important to know that pursuant to MHL section 81.29 entitled “Effect of the appointment on the incapacitated person”, the Guardianship court can revoke a Power of Attorney that was previously signed.  This is an effective part of the Guardianship law that protects incapacitated persons who may be victimized by agents using a Power.

In addition to Guardianship proceedings, it is possible to commence a separate action to require an agent under a Power to provide an accounting of his transactions.  A recent case entitled Matter of Bednarak v. Ingersoll involved an action for an accounting by an agent under a Power of Attorney.  In a decision dated February 4, 2019, Chemung County Supreme Court Justice David Guy recognized that the plaintiff would have the right to challenge transactions by the agent which included the payment of certain legal expenses.

I have represented individuals in Guardianship cases including proceedings which involved the use of a Power of Attorney.  If you have a question or issue regarding Guardianship for an incapacitated person or a Power of Attorney, call me now for a free review.  We offer reasonable and flexible fee arrangements


New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Brooklyn and Manhattan.   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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