Why A Guardianship Proceeding Can Be Important To Help An Incapacitated Person

The statutes in New York provide for a Guardianship for a person who is found to be incapacitated. Article 81 of the Mental Hygiene Law is entitled “Proceedings For Appointment of a Guardian For Personal Needs or Property Management”.

In a typical case a Guardianship is sought to be established by someone who is concerned with the welfare of an alleged incapacitated person. There are numerous situations that arise that can prompt a Guardianship application. The more common problems involve cases where the incapacitated person cannot make decisions regarding assets or handle property matters. As a result, various bills are not being paid such as utility bills, medical expenses, a mortgage or rent or other necessary items. Due to the person’s inability to deal with these matters he is at risk and may suffer harm if these expenses remain unpaid.Pursuant to Section 81.02 of the Mental Hygiene Law, part of the consideration to be made by the Court in determining if a person is incapacitated is whether he will “suffer harm” because he cannot attend to his needs.

Similarly, a Guardian may be necessary where a person cannot make decisions regarding his personal needs such as medical or health care decisions. This would include the hiring of qualified health care professionals to either diagnose or treat a medical or psychological condition.

The New York Probate Lawyer Blog has provided many posts regarding Guardianship cases. It is not always easy to determine if a person needs a Guardian or whether the Court will appoint one. The statute (MHL 81.02) requires clear and convincing evidence. I have represented clients in many cases where it seems that the alleged incapacitated person is in need of assistance but such person opposes the appointment of a Guardian. The alleged incapacitated person is given the right to have a hearing by the Court and also the opportunity to have the Court appoint an attorney to represent him.

The statute (MHL 81.09) also allows the Court to appoint a Court Evaluator. This person will investigate all of the facts in the case by reviewing documents and interviewing all of the persons involved including the petitioner and the alleged incapacitated person. The Court Evaluator then prepares a report for the Court to review which includes the evaluator’s findings and recommendations. While the Court is not bound to accept the Court Evaluator’s recommendations, the Court usually gives such matters great consideration.

I have represented clients in many Guardianship cases. My clients have included petitioners and also other family members or interested parties who oppose the petition. Call me now for a free review if you have an issue or concern regarding a Guardianship case.

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 Kings 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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