Article 81 of the New York Mental Hygiene Law (MHL) contains the provisions concerning the appointment of a Guardian for an individual. There are basically two types of Guardians – a Guardian for Personal Needs and a Guardian for Property Management. The New York Probate Lawyer Blog has published many articles concerning Guardianships in New York.
In short, MHL Section 81.02 provides that a Guardian may be appointed when it is necessary for the personal needs, property management or safety of an individual. A finding of incapacity based upon clear and convincing evidence is required. Incapacity means that a person cannot handle personal or property management functions and cannot appreciate or understand the circumstances surrounding such disability. As a result, the person is at risk of suffering harm. The Guardianship Court focuses on a person’s ability to handle activities of daily living.
A Guardianship case in New York is started by the filing of a Petition with the Supreme Court typically in the County where the alleged incapacitated person (“AIP”) is located. The Guardianship Court will set a hearing date to hear testimony from the parties. Also, the Court may appoint an attorney to represent the AIP at the hearing. A Court Evaluator may also be appointed to review all of the facts, interview the AIP, the petitioner and other persons who have relevant information. The Court Evaluator then prepares a report for the Court with recommendations as to whether a Guardian should be appointed, and, if so, who should be appointed. This process may take at least a few months. Temporary Guardianship appointments are sometimes granted in appropriate situations.
An issue sometimes arises as to whether a Guardianship should be terminated prior to its designated duration, which may be indefinite. It may be that the person who had been found incapacitated has recovered from the incapacitating condition and no longer needs or wants a Guardian to control their affairs.
The MHL contains a provision dealing with this situation. MHL Section 81.36 entitled “Discharge or modification of powers of guardian” contains relevant provisions. 81.36(a)(1) allows the Court to terminate or modify a Guardianship if the Court is satisfied that the person is now able to perform some or all of the powers for property management or personal needs which a Guardian is exercising.
In these cases, there may be a hearing. Also, if the ultimate relief would end the Guardianship or give the person back some powers, the burden of proof in such cases is on the person who would object to the relief being sought.
Of course, in these types of proceedings there would need to be evidence or proof that the person was still incapacitated. A recent case decided by Richmond Court Surrogate Matthew J. Titone on October 2, 2024 entitled In the Matter of the Proceeding for the Termination of the Guardianship of the Person of Brian J.B. provides some insight into these matters.
Brian J.B. did not involve a Guardianship under Article 81 of the MHL. Instead, the Guardianship was under Article 17-A of the Surrogate’s Court Procedure Act. While the statutory process of termination and burdens of proof under the two statutes differ, the case points out the type of examination a Court may engage in to determine whether a person should still be subjected to Guardianship control. In Brian J.B., the Court found that 16 years following the initial Guardianship determination, the person presently was able to make his own personal needs and property management decisions and lived an independent life. Thus, the Court dissolved the Guardianship.
Guardianship cases have many complexities. I have represented clients in these matters and also estate cases throughout New York for over 40 years. Do you have a question regarding a Guardianship? Call Me Now for a free confidential review of your Guardianship matter. 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.