New York Probate Lawyer Blog

As a New York Probate and Guardianship attorney there are many instances where the relationship between third-parties and a Decedent or Incapacitated Person raise cause for concern. The effects of elder abuse or undue influence can disrupt or obliterate what might have been an entirely different disposition of a person’s assets.

The New York Guardian statutes contained in Article 81 of the Mental Hygiene Law make provision for the appointment of a Guardian for a person’s personal needs and property management. The essential element of the statute is appointing a Guardian for someone who is incapacitated. Mental Hygiene Law §81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” provides that incapacity requires a determination that someone is likely to suffer harm because they cannot provide for their needs and are unable to appreciate and understand their disability. In many instances Guardianship proceedings are commenced due to various cognitive and other mental or physical issues which drastically inhibit a person’s ability to function. It is under these circumstances that third parties may take advantage of a person’s vulnerability.

It is not uncommon to find that an incapacitated person’s finances have been manipulated or appropriated. Ownership papers such as deeds and financial accounts may be wrongfully transferred or names added providing for easy access to an unwanted person. Fortunately, the Guardianship laws contain provisions whereby a Guardianship Court can undue this type of damage. Proceedings can be brought in the Court to force a wrongdoer to return or turn over wrongfully obtained assets. Mental Hygiene Law §81.29 allows the Court to revoke a power of attorney, a health care proxy, a contract or conveyance which the Court finds was made during incapacity. However, notwithstanding this broad power, the Guardianship Court cannot revoke a Last Will and Testament. If a Last Will was executed at a time when a person may have been improperly influenced or lacking capacity, the challenge to the document would have to take place after death in the Surrogate’s Court.

The appointment of an Executor or Administrator to represent a New York estate may, at first, seem rather simple. If a person dies without a Last Will and Testament the estate is inherited by the decedent’s next of kin, known as distributees. Pursuant to Estates, Powers and Trusts Law section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, the persons who inherit are listed in the order of their kinship to the decedent, i.e. spouse, then children and so on.

Concomitant to this statute is Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting Letters of Administration”, which gives the same priority to heirs to be appointed as a decedent’s intestate estate Administrator. Problems arise regarding the actual appointment for numerous reasons. The New York Probate Lawyer Blog has published many articles concerning the appointment of New York estate fiduciaries. One major area of contention arises when there are multiple individuals who have an equal priority right to appointment who are competing against each other and contesting the other persons appointment. This circumstance often arises when a decedent’s children or brothers and sisters are seeking appointment. The Surrogate’s Court typically is called upon to resolve or rule on such disputes.

In a situation where a person dies leaving a Will, the document typically contains a provision nominating an Executor and usually one or more successor Executors. When this occurs, the nominated fiduciary has the priority to seek appointment as Executor.