There are many situations where the appointment of a Guardian in New York is a necessary and helpful event. The New York Probate Lawyer Blog has discussed various aspects of Guardianship Law in earlier posts. Article 81 of the New York Mental Hygiene Law (MHL) contains the statutes concerning the proceedings for a Guardianship appointment.
Essentially, there are two aspects of Guardianship. The Court can grant powers to provide for someone’s personal needs such as health care. MHL Section 81.22 entitled “Powers of guardian; personal needs”, lists various personal needs powers that a guardian would have over an incapacitated person. The Court can also grant powers for property management. MHL Section 81.21 entitled “Powers of guardian; property management”, list various property management powers that a guardian would have over an incapacitated person such as providing for managing the person’s financial affairs.In order to impose a guardianship, the Court must find clear and convincing evidence that a person will suffer harm because the person cannot provide for his personal needs or property management and that he does not appreciate or understand this disability. The power of a Court to appoint a guardian is set forth in MHL Section 81.02. The fundamental aspect of the inquiry is whether the person is incapacitated.
In the typical situation a person becomes incapacitated due to an illness or health condition such as dementia or due to a serious accident. As a result of a person’s inability to handle his daily affairs, a guardian is required to safeguard the person and his assets.
In most cases, Guardianship cases are commenced by close family members who usually qualify as the Court appointed Guardian. There have been numerous articles written concerning the abusive and problematic process of guardianship appointments and control. One recent article of a series, written by Emily Gurnon, and appearing at Forbes.com on May 24, 2016 entitled “Guardianship Laws: Improving But Problems Persist”, discusses many of the guardianship issues and needed protections for the incapacitated person. The MHL provides that the alleged incapacitated person must receive a copy of the petition that alleges the need for a guardian. Also, such person has the right to have a lawyer represent him in the proceedings.
Sometimes guardianship proceedings can be avoided by the preparation and execution of advance directives. A person can appoint an agent for property matters by signing a Durable Power of Attorney. A power of attorney form can provide the agent with authority to handle many different property matters such as real estate and banking transactions.
Another type of advance directive is a Health Care Proxy. This documents allows a person to appoint a health care agent who can make decisions if the person becomes disabled.
A more comprehensive type of advance planning involves the creation of a Living Trust. This type of a trust would hold all of a person’s assets. In the event of a disability, the co-trustee or a successor trustee would be able to continue to administer a person’s financial affairs through the trust.
I have represented many individuals in connection with Guardianship proceedings and the preparation of advance directives. If you have any questions regarding any type of Guardianship matter or a contested Guardianship problem, call me now for a free discussion.
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 Guardianship and Nassau Guardianship. If you or someone you know is involved with or has questions about a New York Guardianship, please contact me at (212) 355-2575 or email: firstname.lastname@example.org, for an initial consultation.
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