There are many situations where it appears that a Guardian under Article 81 of the Mental Hygiene Law should be appointed. This statute provides for the appointment of a Guardian for Personal Needs and also for Property Management. The essence of these cases is a determination by the Court that the Alleged Incapacitated Person (AIP) is incapacitated. In this regard incapacity is not a medical diagnosis but is really a functional analysis as to a person’s ability to handle activities of daily living. Where someone cannot handle their personal needs or financial matters due to some type of illness or disability and the person fails to appreciate their malady and is at risk of harm, then a Court upon clear and convincing evidence may appoint a Guardian. While Article 81 provides a list of powers to be exercised by a Guardian, the Court can provide the precise powers which may apply in any particular situation.
A Guardianship case is commenced by the filing of a Petition and a proposed Order to Show Cause in the County where the AIP is located. The Petition will provide all of the information regarding the AIP’s situation, the need for a Guardian and information about the Petitioner. Anyone interested in the welfare of an AIP may file a Petition. The New York Probate Lawyer Blog has published many articles regarding issues concerning Guardianship in New York.
As noted, there are many situations where a Guardianship is needed. A person may suffer a severe illness or accident or may be experiencing difficulties due to cognitive matters such as dementia. I have seen many cases where relatively young individuals are suffering from the onset of mental disorders such as schizophrenia.