Articles Posted in Guardianships

The appointment of a Guardian for the personal needs and property management of an incapacitated person is provided by Article 81 of the Mental Hygiene Law (MHL). There are many interesting aspects to Guardianship proceedings. MHL Section 81.02 requires that the Court needs to find clear and convincing evidence that a person is incapacitated.

There are many variations regarding the extent of incapacity of an Alleged Incapacitated Person (“AIP”). Some AIP’s require more assistance with activities of daily living than others. In other words, some AIP’s can function effectively to some extent and, therefore, do not need a Guardian to completely control their activities. Continue reading

Article 81 of the New York Mental Hygiene Law (MHL) is entitled “Proceedings For Appointment of a Guardian for Personal Needs or Property Management”.   Under this statute, a Guardian can be appointed for a person who is found to be incapacitated.

A determination regarding incapacity must be based upon clear and convincing evidence (MHL § 81.02).   In most Guardianship cases, the Court will review the functionality of the alleged incapacitated person (AIP). This means that there will be an examination of the AIP’s ability to handle activities of daily living such as the ability to handle finances, shop, cook, take care of personal hygiene and other ordinary daily activities. Continue reading

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. Continue reading

Guardianship cases in New York are controlled by Article 81 of the Mental Hygiene Law (MHL). When a person wants to commence a Guardianship proceeding, there are a number of papers that must be filed with the Court. The two essential papers are the Petition and the Order to Show Cause.

In the Petition, which is usually prepared with the assistance of a Guardianship Attorney, all of information regarding the Alleged Incapacitated Person (AIP) is provided. MHL Section 81.08 entitled “Petition”, lists the information that needs to be provided. These items include the name, address and age of the AIP and a description of the AIP’s ability to manage his activities of daily living. Also, the powers regarding property management and personal needs that are being sought should be specified. The AIP’s financial information should be provided, as well. Continue reading

Guardianship cases in New York are controlled by Article 81 of the Mental Hygiene Law (MHL). These proceedings concern the appointment of Guardians for personal needs and for property management.

The Court proceedings in Article 81 cases involve the filing of a petition with the Court and a hearing. The Court must decide whether clear and convincing evidence has been presented that shows a person to be incapacitated and in need of a Guardian. Continue reading

The appointment of a Guardian in New York is provided for in Article 81 of the Mental Hygiene Law (MHL). There are two areas in which a Guardian can be needed. A person who is found to be incapacitated may need a Guardian for personal needs. A personal needs Guardian will have the authority to make decisions regarding health care, living arrangements and other personal decisions regarding the AIP’s affairs.

A Guardian for property management has the power to collect and control the assets of the incapacitated person. These assets may include bank accounts, brokerage accounts and real estate. It is the Guardian’s duty to collect these assets or place these assets under the Guardian’s control and use them for the person’s best interests. Continue reading

The Guardianship law in New York is found in Article 81 of the Mental Hygiene Law (MHL). The Court may appoint a Guardian if it finds that a person is incapacitated. However, incapacity is not always easy to determine or prove.

New York City Guardianship Attorneys typically review Section 81.02 of the MHL. This section sets forth that any decision by the Court regarding incapacity needs to be made upon clear and convincing evidence. This evidence can be easy or hard to obtain. In some cases where a person has suffered a severe injury or illness it is apparent that the person would probably suffer harm without a Guardian since he cannot provide for his own personal needs or property management. An example would be where a person is unconscious or completely immobilized or unable to engage in any activities of daily living. Continue reading

Guardianship cases in New York are provided for by Article 81 of the Mental Hygiene Law (“MHL”). Article 81 is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management”. As a New York City Guardianship attorney, I have represented many individuals who have filed petitions for Guardianship appointment.

MHL Section 81.02 essentially requires that unless a person agrees to the appointment, the Court must find by clear and convincing evidence that a person is incapacitated. The person against whom the proceeding is brought is called an alleged incapacitated person (AIP).  The AIP is entitled to a hearing before the Court can make its decision regarding the need for a Guardian (MHL 81.11). Continue reading

The statutes concerning the appointment of a New York Guardian for a person who is incapacitated are located in Article 81 of the Mental Hygiene Law (MHL). There have been many articles posted concerning the law of guardianship in the New York Probate Lawyer Blog.

A Guardianship case is commenced by the preparation and filing of a proposed Order to Show Cause to be signed by the Court. Once it is signed, the Order to Show Cause will contain many items of information regarding the proposed guardianship hearing including the date upon which the hearing will be held, information regarding the appointed Court Evaluator and any court appointed attorney for the alleged incapacitated person (“AIP”). MHL Section 81.07 entitled “Notice” provides the form and many of items of information that need to be a part of the Order to Show Cause. The Order, when completed and signed by the Court, will then be served on the various parties who are interested in the proceeding or are otherwise specified in the Order as being entitled to receive a copy. If the Order to Show Cause and other papers are not properly served in accordance with the direction of the Court, the guardianship case cannot proceed. Continue reading

There are many situations where the appointment of a Guardian in New York is a necessary and helpful event.  The New York Probate Lawyer Blog has discussed various aspects of Guardianship Law in earlier posts.  Article 81 of the New York Mental Hygiene Law (MHL) contains the statutes concerning the proceedings for a Guardianship appointment.

Essentially, there are two aspects of Guardianship. The Court can grant powers to provide for someone’s personal needs such as health care. MHL Section 81.22 entitled “Powers of guardian; personal needs”, lists various personal needs powers that a guardian would have over an incapacitated person. The Court can also grant powers for property management.  MHL Section 81.21 entitled “Powers of guardian; property management”, list various property management powers that a guardian would have over an incapacitated person such as providing for managing the person’s financial affairs. Continue reading