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The Appointment of a New York Guardian Involves the Balancing of Many Factors

original_1074565532-300x107There are many factors to be considered in connection with the appointment of a Guardian for personal needs and property management pursuant to Article 81 of the Mental Hygiene Law.  A recent post in the New York Probate Lawyer Blog discussed the requirement that clear and convincing evidence be presented before a Guardian is appointed.  A recent Guardianship case entitled Matter of Elias B. decided by Broome County Supreme Court Justice David Guy on June 30, 2021 highlights the many considerations a Court needs to review in a Guardianship case.

In Elias, the alleged incapacitated person (AIP) had been hospitalized but was now ready for discharge.  It appeared that the AIP was a developmentally disabled person who had lived in the community for a number of years and had received local social services assistance.  However, the AIP had been unable to maintain a permanent living situation, but could find his way to receive medical and social services assistance, despite his transient existence.  The Court found that the AIP could attend to some, but not all, of his activities of daily living.

It appears that as part of its discharge plan, the only housing facility that the hospital could find which would accept the AIP was located in New Jersey.  The AIP refused to go to live in this location and the hospital could not otherwise discharge him without an established living environment.  Thus, the hospital sought the appointment of a Guardian to assist with the AIP’s discharge and relocation.

The Court held a hearing and noted that in addition to reviewing an AIP’s functional level and determining whether the AIP would suffer harm and was incapacitated, there were additional aspects to review.  The Court noted that it must consider the AIP’s personal wishes, preferences and judgment.  Also, the Guardianship laws required that a Court should choose the least restrictive form of relief.

In the case of the AIP, it was determined that although a discharge into the community without a permanent housing facility might be risky, the AIP was familiar with the local community where he had lived for years and knew how to obtain local medical and community services.  On the other hand, if a Guardian was appointed and placed the AIP in a New Jersey facility, it was likely the AIP would leave the facility and he would be unfamiliar with the New Jersey transient living conditions and the places he could go for medical care and social services.  The Court declined to appoint a Guardian and found that there was no “risk-free” solution.  The Court did not want to substitute its judgment for that of the AIP and had to balance the appointment of a Guardian with the AIP’s right to independence.

I have represented many individuals in Guardianship cases.  These matters can be complicated and an experienced Guardianship lawyer can be essential.  Many issues and factors arise concerning an alleged incapacitated person and also the concerns of family and friends who are trying to assist a person in need.  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.

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