New York Guardianship – What Powers Does an Article 81 Guardian Possess

Guardianship-300x201New York Guardianship proceedings are controlled by Article 81 of the Mental Hygiene Law (“MHL”) entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management.”  The New York Probate Lawyer Blog has published many articles concerning Guardianship.

The essence of appointing a Guardian concerns a determination that a person is incapacitated.  Incapacity, contrary to its connotation that a person is completely incapable of handling personal needs or property matters, is really a case by case individual determination of abilities.  The inquiry is to examine a person’s functional ability as it relates to handling activities of daily living.  According to MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment,” incapacity needs to be shown by clear and convincing evidence.  There must be a determination that a person will likely suffer harm because they cannot provide for their needs and that the person cannot appreciate and understand the consequences of their disability.

In a typical case, a petition is filed with the Court.  The Court then sets a date for a hearing.  All close family members are given notice as well as other interested parties.  The alleged incapacitated person usually has a Court-appointed attorney and the Court may appoint a Court Evaluator.  The Evaluator reviews the case, interviews parties, and provides the Court with a report and recommendations.

Once a Guardian is appointed, he is a fiduciary and is responsible for handling the affairs of the Incapacitated Person (“IP”) according to the powers granted in the Court Judgment and Order.  MHL 81.21 provides a list of property management powers and MHL 81.82 provides a list of personal needs powers.  All of these powers may not be needed in each case.  The Guardianship Court only allows the least restrictive powers so as not to take away all of a person’s ability to care for himself if not necessary.

The typical powers obviously are to collect and manage a person’s finances and to make medical and health care decisions.  Depending upon the situation, these powers and fiduciary obligations of a Guardian may require complex decision-making.  For example, an IP may require extensive medical or nursing home care which can be quite costly.  A Guardian may need to assess whether an application for Medicaid and other medical insurance is appropriate and then move forward to obtain these benefits.

Also, an IP may be involved in some type of litigation.  It may be necessary for a Guardian to pursue litigation against third parties to turn over assets which were improperly obtained from the IP when he was incapacitated and allegedly taken advantage of.  Interestingly, a Guardian may seek to annul a marriage the IP entered into if it is found that the IP lacked the ability to understand and did not intend to enter into such matrimonial engagement.  Sometimes, an IP is the subject of eviction proceedings due to nonpayment of rent or creating a nuisance in the building where the IP is living.  A Guardian may need to deal with these matters.

Recently, there has been a number of articles concerning a Guardianship which was imposed on the talk-show personality, Wendy Williams.  Apparently, Ms. Williams’ sister was appointed as Guardian.  The Guardian sought to prevent the showing of a film about Ms. Williams which the Guardian alleged portrayed the Guardian and Ms. Williams negatively.  As reported in a recent article by Kevin Dolak on March 22, 202 in the Hollywood Reporter entitled “Wendy Williams Guardian Tried to Gag Lifetime Docuseries After Securing Critical Trailer, A&E Claims”, a recent Court decision disallowed any restraint on the showing of the film.

As can be seen by the Wendy Williams case, Guardianship cases and powers can be complicated.  The assistance of an experienced Guardianship lawyer can be essential.  Do you have a question regarding a Guardianship?  Call Me Now for a free confidential review of your issue.  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.

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