New York Probate Lawyer Blog
The primary guardianship law in New York is contained in Article 81 of the Mental Hygiene Law (“MHL”) which is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management.” The New York Probate Lawyer Blog contains many posts discussing guardianship law and procedure.
When a guardian is appointed, the New York Courts grant an Order which specifies and limits the powers which the guardian can exercise regarding the personal affairs and property management of the incapacitated person. However, before a guardian is appointed, there are numerous safeguards in the law intended to protect the rights of a person who is alleged to be in need of a guardianship. The recent case involving Britney Spears, while occurring in a state other than New York, brings to light the importance of adhering to and implementing these safeguards.
For example, before a guardian can be appointed, MHL Section 81.02 requires that the appointment is necessary to provide for someone’s personal and property needs and that the person is incapacitated. The statute goes on to provide that incapacity must be based upon clear and convincing evidence and show that a person will suffer harm because of their inability to attend to their affairs and that the person does not understand and appreciate their inability to meet their own needs.
Incapacity is not just based upon an examination of psychological or physical condition. It is really a determination of a person’s functionality in being able to handle activities of daily living relating to financial and personal affairs.
In guardianship cases, especially matters that are complex and contentious, the Court will appoint a Court Evaluator pursuant to MHL Section 81.09 to investigate the facts and issues. The Court Evaluator then prepares a report for the Court containing information and also recommendations which are not binding on the Court. Also, the Court may appoint an attorney to represent the interests of the alleged incapacitated person. MHL Section 81.10 provides for the appointment of counsel.
A guardian is not appointed without a full hearing, at which evidence, including witness testimony, is presented (MHL Section 81.11).
While the appointment or need for a guardian may be contested and the outcome is not always clear, the Court retains the discretion to mold the guardianship and the guardian’s power to meet the requirements of each individual case. Of course, the needs and protection of the person alleged to be incapacitated should always be paramount. The language of MHL Section 81.01 makes clear for individuals subject to a guardianship, that there should be “the least restrictive form of intervention which assists them in meeting their needs, but at the same time, permits them to exercise the independence and self-determination of which they are capable.”
These are lofty goals of the statute. As can be seen from the Britney Spears case, the guardianship system can suffer from abuse. Even in New York, there is a pending dispute regarding the guardianship of the famous pop artist Peter Max. In a recent New York Post article appearing at NewYorkPost.com, on September 29, 2021, Miranda Devine reports about alleged extensive abuses which have resulted in Peter Max being isolated from family and friends and subjected to alleged financial abuse by his guardian. Peter Max was placed under a guardianship in 2016.
I have represented clients in guardianship cases for over 40 years throughout the New York Courts. I have served as a Court Evaluator and attorney for the incapacitated person, as well. If you have an issue or concern about a guardianship or an estate, Call Me Now for a free confidential review. 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.