New York Probate Lawyer Blog
Guardianship proceedings in New York are governed by the provisions of Article 81 of the Mental Hygiene Law (“MHL”). Earlier posts in the New York Probate Lawyer Blog have discussed many of the aspects of guardianship for incapacitated persons (“IP”). For example, the statute provides for the appointment of a guardian for personal needs and a guardian for property management. Typically, when the Court appoints a guardian, the same individual will act in both capacities. However, there are instances when the Court will name different persons to serve in these capacities. This may occur when it is determined that a family member is best suited to make personal decisions for the incapacitated person but that someone else is more qualified to handle the IP’s financial affairs.
As discussed in earlier posts, the Court will conduct a hearing to determine whether any appointment is necessary. In many instances, the alleged incapacitated person (“AIP”) will have prepared and signed advanced directives prior to the commencement of the proceedings. Such advanced directives would include a Power of Attorney and Health Care Proxy. Generally the existence of these directives may constitute available resources that might be sufficient so as to preclude the necessity for a guardianship.
Additionally, MHL 81.29 gives the Court authority to revoke advance directives and other papers signed by the AIP. During the Guardianship hearing, the viability of these papers will be considered by the Judge. For example, if the Court determines that an advanced directive such as a power of attorney or health care proxy was signed by the AIP at a time when the AIP was incapacitated, the Court could revoke these papers. Also, if the Judge finds that the person appointed as Agent in these papers is acting improperly such as breaching their fiduciary duties, the Court can revoke their authority. Such revocation occurred in the recent case of Matter of Karen, decided by Bronx Supreme Court Justice Sharon A.M. Aarons on August 27, 2014. In Matter of Karen, the AIP had executed a Power of Attorney appointing one of her daughters as her Attorney-in-Fact. While the Court found that the AIP had the capacity to sign the paper, the Court revoked the power since it determined that the daughter breached her fiduciary duty to the AIP in mishandling the AIP’s property. Such mishandling involved allowing one of the mother’s bank accounts to escheat to the State. The daughter had also allowed the mother’s home to be transferred to the daughter for no consideration.
I have been involved with numerous Guardianship Court Proceedings in which issues have arisen concerning the validity of a Power of Attorney and Health Care Proxy. Some of these cases also involved a breach of fiduciary duty.
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.
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