Guardianships

August 7, 2013

A New York Supplemental Needs Trust Can Preserve Estate Assets for an Incapacitated Person

A New York Supplemental Needs Trust (“SNT”) is a trust that allows trust funds to be available for a person who is receiving government benefits such as Medicaid or Social Security Disability (“SSD”). The governmental payments continue and are not reduced or terminated despite the existence of the trust fund. While the government sometimes may be entitled to claim a re-payment upon the death of the beneficiary, the beneficiary can utilize both the government and trust resources during life in furtherance of their quality of life.

A SNT is typically needed where a person is disabled or incapacitated and is the recipient of governmental assistance. New York Estates, Powers and Trusts Law (“EPTL”) Section 7-1.12 provides the statutory details as to the trust requirements. New York Estate and Guardianship Lawyers generally become aware that there are many different situations where a SNT can preserve assets to be used for incapacitated individuals. For example, there are situations where a person may be injured due to an accident or medical procedure and ultimately receive a large monetary award for the injuries they suffer. Sometimes the injuries also result in an incapacity that would allow the person to qualify for benefits such as Medicaid or SSD if they did not have any personal assets. In order to prevent the monetary settlement from disqualifying the person from receiving the benefits, the settlement proceeds can be placed into a SNT. The SNT trustee can then use the SNT funds in his discretion to provide additional care and benefits which are not provided through the government payments.

Many situations where a SNT is needed may involve Court proceedings such as Article 81 Guardianships in the Supreme Court or Estate Administration in the Surrogate’s Court. In these matters, the Court is asked to authorize and allow the creation of the SNT and the transfer of the funds to the SNT trustee. Court authorization allows the funds to pass directly to the trust and avoid having the incapacitated person receive these monies which would otherwise result in the disqualification or termination of the governmental benefits.

A recent case in the Nassau Surrogate’s Court is a typical example of the use and benefit of a SNT. Matter of Krushnauckas, decided by Surrogate Edward McCarty III on June 28, 2013, and reported in the New York Law Journal on August 8, 2013, concerned the estate of an individual, Adrienne, who died intestate leaving a daughter named, Michele. Michele was 56 years of age and was mentally retarded and was receiving governmental benefits in the form of Medicaid and Supplemental Security Income. Michele’s Property Management Guardian was the Public Administrator who requested that the Court approve a SNT for the approximately $400,000 estate distribution that Michele was entitled to receive. By placing the inheritance into the SNT, Michele’s Medicaid and SSI would not be affected. After reviewing the general benefits and reasons for establishing a SNT along with some issues regarding payback of benefits, the Court authorized the establishment of the trust.

The effective planning and use of a SNT in Article 81 Guardianship proceedings and Estate Settlement matters can create tremendous benefits and promote the quality of life for persons suffering from disabilities and incapacity.

May 22, 2013

New York Guardianship Can Be Contested or Based Upon Consent

by Jules M. Haas

New York Guardianship proceedings are controlled by Article 81 of the New York Mental Hygiene Law (“MHL”). The New York Probate Lawyer Blog has provided numerous posts regarding issues concerning this type of court proceeding.

The essence of a Guardianship proceeding is to determine whether the appointment is needed to assist a person with personal needs or property management. MHL Section 81.02(a)(2) provides that a Guardian can be appointed when the alleged incapacitated person (“AIP”) either “agrees to the appointment” or if the AIP is found to be “incapacitated”. In most proceedings, the determination of incapacity is the central focus of the Court hearing. The statute requires “clear and convincing” evidence to find incapacity. A court hearing involves many different participants which may include the petitioner (the person who commences the Court case), the AIP, a Court Evaluator, a Court-appointed attorney who represents the AIP, New York State Mental Hygiene Legal Service and the local Medicaid office such as the New York City Human Resources Administration. Also, family members and friends of the AIP may become participants if they intervene in the proceeding.

If the AIP opposes the appointment of a Guardian, the Court may hear the testimony of many witnesses and may review numerous documents with regard to its consideration of the necessity of an appointment. All of the aforementioned participants play an important role in the Court case and in providing the Court with all the information needed to make a final determination. In Contested Guardianship Proceedings, the Court wants to fully understand the situation and circumstances concerning the AIP so that it can assess whether the statutory mandate of “incapacity” has been shown.

It should be recognized that even in a case where “incapacity” is beyond dispute, the Court requires a hearing and the presentation of evidence regarding the need for the appointment. New York Guardianship Attorneys know that in such matters the Court will want to hear testimony from the petitioner and receive evidence of the AIP’s condition from a social worker or doctor or in some other acceptable form to document the basis for the Guardian’s appointment.

As noted earlier, MHL 81.02(a)(2) allows the appointment of a Guardian where a person consents to the appointment. Consentual guardianships appear to be the exception rather than the rule since there is always the issue as to whether the AIP has the capacity to make a knowing consent. However, there are occasions when the Court will find that consent is appropriate. Such was the situation in a recent case decided by Bronx Supreme Court Justice Alexander W. Hunter entitled “Matter of the Guardian for L.J.L.” decided on May 6, 2013 and reported in the New York Law Journal on May 17, 2013. In L.J.L. the Court held a hearing and recognized that Article 81 of the MHL does not provide any statutory guidance to assist the Court in deciding whether a person has the capacity to consent to a Guardian. However, after considering all of the evidence presented, the Court in L.J.L. found that the AIP had capacity to consent and appointed a Special Guardian of the person and property of the AIP for the limited period of one year.

March 13, 2013

A New York Guardianship Based Upon Consent Does Not Constitute Incapacity

by Jules M. Haas

Article 81 of the New York Mental Hygiene Law (“MHL”) is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management”. The New York Probate Lawyer Blog has published numerous posts regarding many different aspects of the Guardianship laws.

One of the main requirements for the appointment of a Guardian is that the Court must find that a person is “incapacitated” (MHL Section 81.02). However, the statute also provides that the Court may appoint a Guardian where a person “agrees to the appointment”. The vast majority of Guardianship cases typically involve a situation where a person is found to be incapacitated rather than just agreeing to such appointment. In fact, there appears to be sort of an inconsistency between having to declare someone to lack capacity while at the same time allowing them to consent or agree to have a Guardian.

Most recently, Justice H. Patrick Leis, III (Supreme Court, Suffolk County) confronted this issue in Matter of Buffalino which was decided on March 6, 2013 and reported in the New York Law Journal on March 15, 2013. In Buffalino, a person identified as “Mr. D.”, who had been suffering with brain cancer, consented to the appointment of a Guardian. At that time, the Court found that Mr. D had the capacity to agree to the appointment. Thereafter, Mental Hygiene Legal Service, on behalf of Mr. D., sought to discharge the Guardian and the Guardian sought to expand his powers and keep the Guardianship in place.

The Court recognized that Article 81 did not clearly define the test to be used to decide whether someone has the capacity to agree to have a Guardian appointed. The Court clearly recognized that determining capacity to consent is not the same as the full review required by a Court hearing to show incapacity and that a finding of capacity to consent does not automatically result in a determination of incapacity.

After reviewing all of the evidence presented, the Court in Buffalino decided that the current Guardian could not demonstrate that Mr. D. required a Guardian and, therefore, discharged the Guardian.

The Buffalino case shows the problems and limitations that may be encountered when a Guardianship is based upon the consent of the person who is disabled. There appears to be an absence of certainty and the long-term ability of the Guardian to act on behalf of the ward. Due to these limitations and the inherent difficulty of determining whether an alleged incapacitated person has at least enough capacity to consent, there are generally few cases where the Guardianship is allowed based upon consent.

Unfortunately, the necessity for a Guardian where a person lacks capacity pervades both the rich and less fortunate. Recent events have been reported concerning Guardianships for film stars Mickey Rooney and Zsa Zsa Gabor. Bill Hetherman reported on March 4, 2013 in the Daily News.com that a probate court judge allowed Mickey Rooney’s Conservator to sell his million dollar home. In an article reported in mydesert.com on February 24, 2013, it was reported that a Court extended the Conservatorship over Zsa Zsa Gabor.

March 6, 2013

New York Guardianships End Upon the Death of the Incapacitated Person

by Jules M. Haas

New York Guardianship Attorneys are familiar with Article 81 of the Mental Hygiene Law (“MHL”) which provides the statutory provisions governing Guardianships in New York. When a person is determined to be incapacitated and a Guardian is appointed for property management or personal needs, the Court will issue an Order and Judgment specifying the Guardian’s duties and powers. Thereafter, the County Clerk will issue a Commission which is the formal certification of the Guardian’s appointment.

A Guardianship is generally ended upon the death of the incapacitated person. The Court Order and Judgment usually sets forth the procedures that are to be followed when the incapacitated person dies. These requirements typically re-state portions of the MHL law. For example, MHL 81.44 entitled “Proceedings upon the death of an incapacitated person”, contains a number of requirements including that within twenty (20) days after the incapacitated person dies a Guardian must send a statement of death to the Court examiner and the estate personal representative. Also, within 150 days of death the Guardian must serve a statement of assets and deliver all guardianship property to the estate personal representative.

In addition to the requirements of MHL 81.44 other sections of the law also relate to post-death procedures. MHL 81.21(a)(14) allows a Guardian to pay funeral expenses for the incapacitated person and MHL 81.21 (a)(20) gives the power to “defend or maintain any judicial action or proceeding to a conclusion until an executor or administrator is appointed.”

As stated in MHL 81.44, the Guardian is required to prepare and file a final report or accounting. As can be seen, accepting an appointment as Guardian involves a great deal of responsibility. Both before and after the death of the incapacitated person, the Guardian must maintain detailed reports to be filed with the Court regarding the person’s assets, income, expenses and general welfare. When an incapacitated person dies, all of this information transfers over to the estate representative who must review the Guardian’s transactions and determine whether to provide final approval or acceptance of the Guardian’s conduct. If the estate representative, such as an Executor or Administrator, feels that the Guardian did not act properly, objections can be filed to the Guardianship Accounting and the Court will determine whether any corrections or other remedy is required.

Guardianship and estate proceedings often interconnect especially since many Article 81 Guardianship matters concern older individuals who have become disabled due to physical illness or other conditions such as dementia. As a Guardianship and Estate Lawyer I have represented individuals involved in all of these types of proceedings. Sometimes my clients have been involved in Guardianship proceedings and then have requested that I assist with representation in probate or administration matters after the incapacitated person has died.

February 20, 2013

New York Incapacitated Persons Must Be Given Proper Legal Notice

by Jules M. Haas

New York Court proceedings involving Incapacitated Persons require careful scrutiny by the Court. When a person who lacks capacity is a party to a legal action such as a defendant or respondent, it is imperative that such person’s rights are protected since their ability to defend themselves is impaired.

In the typical Guardianship Proceeding under Article 81 of the Mental Hygiene Law (“MHL”), the Court will appoint either a Court Evaluator or an attorney to represent the Alleged Incapacitated Person (“AIP”). Sometimes the Court will appoint both an attorney and a Court Evaluator. MHL Section 81.10 entitled “Counsel” sets forth the circumstances in which an attorney will be appointed by the Court for the AIP. MHL 81.09 entitled “Appointment of Court Evaluator,” discusses such appointment. While a Court Evaluator does not act as the attorney for an AIP, the Evaluator will interact with the AIP and perform an investigation for the Court and can, among other duties, determine whether the Court should be informed to appoint an attorney for the AIP. All in all, the MHL statutes provide for a number of avenues to insure that the AIP is protected in the Court proceedings.

Serious issues arise, however, when a person who is suffering from an incapacity becomes involved in Court proceedings that are not covered by the MHL. For example, it is not uncommon for such a person to be ill and hospitalized or affected by dementia or Alzheimer’s disease. Due to these types of circumstances, a person may forget, or be unable, to pay bills such as their rent or mortgage. Non-payment of these items will eventually result in lawsuits for eviction or foreclosure. Unfortunately, someone who is sued by a landlord or mortgage company may have no one around to help them or to seek the appointment of an Article 81 Guardian. In such cases the impaired person is completely vulnerable and often unable to defend themselves in an ordinary eviction or foreclosure action. In these cases if the Court is aware of a person’s disability the Court has the authority to appoint a limited guardian to protect a person’s interest in the particular lawsuit. Section 1201 of the New York Civil Practice Law and Rules allows a Court to appoint a Guardian ad Litem for an adult person who is “incapable of adequately prosecuting or defending his rights.”

In many instances the Court may be unaware of a person’s condition since the person, due to lack of understanding or ability, merely defaults and does not appear before the Court to represent his interests. In a recent case entitled Financial Freedom Acquisition LLC v. Evelyn L. Jackson, the Honorable Charles J. Markey (Supreme Court, Queens County), in a decision dated December 24, 2012 and reported in a New York Law Journal on January 29, 2013, dismissed a foreclosure lawsuit against an individual who had been in a nursing home at the time of the Summons and Complaint were allegedly served on her. After an extensive investigation by the Court appointed Guardian ad Litem, the Court found that the property owner lacked the mental capacity to understand the Court papers and it was questionable whether the Court papers were properly served upon the homeowner in the nursing home.

As a New York Guardianship Attorney, I have represented many clients involved in Article 81 proceedings. Sometimes, these proceedings are precipitated by other Court actions such as landlord/tenant evictions or foreclosure lawsuits that require the appointment of a Guardian to help protect the rights of an AIP. In these matters, it may be that multiple Court actions are occurring at the same time and quick action is needed so that an AIP’s home is not lost through no fault of their own.

January 8, 2013

New York Guardianship Laws Can Provide a Safety Net for Elderly Individuals

by Jules M. Haas

New York Guardianship Laws are contained in Article 81 of the Mental Hygiene Law (MHL). These statutory provisions are utilized in many situations where a person in need is Alleged to be Incapacitated. Quite often the Alleged Incapacitated Person (“AIP”) is elderly and is suffering from the effects of a sudden medical condition such as a stroke or cardiac arrest or the long term deterioration of mental capacity due to dementia.

Whatever the circumstances may be, the family or friends of an elderly individual who loses the ability to attend to Activities of Daily Living, can follow the procedures outlined in Article 81 and attempt to have a Guardian appointed. New York Guardianship attorneys provide guidance to their clients who want to petition the Court for the appointment of a Guardian of the Person or Guardian for Property Management.

The Guardianship law provides a sort of safety net for persons lacking capacity, particularly in the case of the elderly. MHL Section 81.06 entitled “Who may commence a proceeding”, allows a Guardianship Petition to be commenced by just about anyone who has a concern about the AIP including anyone who resides with the AIP and “a person otherwise concerned with the welfare of the person. . . .” While petitions for Guardianship are usually commenced by family members, the proceedings are sometimes started by a hospital, a nursing home or a governmental agency such as the New York City Department of Social Services where Adult Protective Services provides community intervention. By having an expansive list of individuals and entities that can intercede on behalf of an AIP, there is a greater possibility that an AIP can receive Court intervention and protection particularly where no family member exists or the AIP’s family will not become involved.

A recent article in FoxNews.com published on December 28, 2012 describes the situation of the elderly in China where the national legislature amended its laws to require that adult children visit their elderly parents “often” or run the risk of being sued by the parent. According to the article, the law was instituted due to a number of factors including increased elderly population in China where the social safety net is lacking and there is a limit on family size which creates a large financial burden for elderly care on just a single child.

One can only imagine the plethora of lawsuits that would deluge the Courts if such a law was enacted in New York. While Guardianship proceedings in New York may be formalistic by requiring Court papers and hearings in front of a Judge, the proceedings do provide a process to protect elderly persons from harm due to incapacity. Of course, Estate Planning prior to incapacity in the form of a Health Care Proxy, Living Will, Living Trust and Last Will is always the best course to follow in order to avoid the need for a Guardianship.

December 12, 2012

New York Surrogate’s Court Proceedings May Require A Guardian Ad Litem

by Jules M. Haas

The New York Probate Lawyer Blog has discussed many of the proceedings that can arise in the Surrogate’s Court such as the Manhattan Surrogate’s Court and Nassau Surrogate’s Court. Each of the counties in New York State has its own Surrogate’s Court.

The various proceedings include Probate Proceedings, Intestate Administration Proceedings, Accounting Proceedings, Kinship Proceedings, and various other Miscellaneous Proceedings such as proceedings to revoke the appointment of a fiduciary.

In order for the Court to determine the issues in the cases that are filed, the Court must be certain that all parties interested in the case have received a proper notice and have had an opportunity to appear before the Court and protect their interests. Very often, the Notice that a party receives is a Citation or an Order and Show Cause. These Notices must be properly served on a party and provide information as to the date, time and place of the Court hearing.

It is not uncommon in many cases that one of the parties may not be legally capable to protect their interests or appear in Court. An infant (i.e., someone under age 18) or a person who is incapacitated cannot act for his or her own welfare. When these situations arise, there are a number of avenues that can be followed so that the incompetent party can participate in the Court proceeding.

With regard to an infant, he or she may appear by a Court appointed guardian of his or her property. See Surrogate’s Court Procedure Act (SCPA) Section 402. This section also provides that an incapacitated person may appear by a Court appointed guardian. Article 81 of the Mental Hygiene Law provides an extensive procedure for the appointment of a Guardian of the person and property for an incapacitated person.

When an infant or other disabled person has not had a Guardian appointed to represent them or when the Court feels that such Guardian cannot adequately represent them, the Court can appoint a Guardian ad Litem. SCPA 403 provides for the appointment of a Guardian ad Litem selected by the Court but also provides a procedure whereby the Guardian ad Litem can be nominated by an infant over 14 years old or his parent or guardian. Of course, such nomination is subject to approval and appointment by the Court.

In a recent case entitled a Will of Nanaline Duke, decided by Manhattan Surrogate Nora Anderson on November 28, 2012 and reported in the New York Law Journal on December 10, 2012, the Court allowed the family members to nominate the Guardian ad Litem.

Typically, the Guardian ad Litem will act as the representative of the person under disability and protect his or her interest in the Court case. SCPA 405 provides the procedure for the Guardian ad Litem to be paid for services rendered.

Estate Litigation involves many complex issues and procedures. As a New York Estate Lawyer I have represented many clients where the Court has appointed a Guardian ad Litem to represent a party’s interest. I have also acted as the attorney for Guardians who are acting on behalf of incapacitated individuals. For example, in a situation where a decedent dies intestate and his or her sole heir is incapacitated, I have petitioned the Court to appoint the sole heir as an Article 81 Guardian who then had the authority to act as the Administrator of the decedent’s estate.

November 21, 2012

New York Gifts Made Prior to Death Are Often the Subject of After Death Disputes

by Jules M. Haas

The New York Probate Lawyer Blog has posted many items concerning Estate Litigation. Litigation in New York Estates in common in the context of a Will Contest where a distributee (next of kin) such as a child is either completely excluded from the Will or left a bequest that is less than expected. Other typical situations are where a Will disposes of an estate to unrelated third parties such as a caretaker or friend. Allegations concerning undue influence, lack of testamentary capacity or duress usually result from such occurrences. Where a Will is contested, the focus is not only on the decedent but also on the witnesses to the Will and the attorney draftsperson who can testify and shed light on the circumstances surrounding the creation of the estate plan and the Will execution process.

However, not all estate disputes concern bequests that emanate from a Will after death. Many times controversy surrounds inter vivos or lifetime gifts that are made by a decedent. Such gifts can be subject to attack based upon similar grounds of lack of capacity. Often, the lifetime gifts appear inconsistent with, and actually can destroy, an estate plan that the decedent set forth in a Last Will or Living Trust document.

Gift litigation can take place in different forms. Sometimes, prior to a person’s death, an Article 81 Guardianship proceeding may be commenced due to a person’s incapacity. Section 81.29 of the New York Mental Hygiene Law gives the Court the power to revoke transfers that were made by an incapacitated person. In situations that come to light after a decedent’s death, an estate fiduciary, such as Executor or Administrator, can seek to recover assets for the estate where the life-time transfer appears to be improper. Proceedings for the turn-over of assets are provided in New York Surrogate’s Court Procedure Act Section 2103.

An estate fiduciary has the responsibility to attempt to marshal and collect all of the assets that rightfully belong to the decedent. Demonstrating that a person lacked the capacity to make a certain lifetime gift is not easy. An example of the difficulty in prevailing with such a claim is shown in the recent case of Estate of Magda Cordell McHale, decided by Surrogate Barbara Howe of Erie County on September 28, 2012 and reported in the New York Law Journal on October 9, 2012.

In McHale, a beneficiary under the decedent’s Last Will objected to the fiduciary accounting due to the failure to include certain charitable gifts the decedent made shortly before her death. After a hearing the Court concluded that the decedent had both the “intent” and “capacity” to make the pre-death gift.

Cases such as McHale present many difficult issues involving estate settlement and fiduciary responsibility. I have represented individual family members who have felt that such pre-death gifts were the result of undue influence. I have similarly defended individuals who have received pre-death gifts where assertions have been made that such gifts were the result of undue influence. In all cases, it is important to review the history of the decedent, the expressions of intent that may have been made and the relationships been the various parties in order to have a full and clear picture about the proprietary of the disputed transfer.

November 14, 2012

New York Article 81 Guardianship Proceedings Can Arise in Housing Proceedings

by Jules M. Haas

New York Guardianship proceedings can be found to be an appropriate remedy in varied situations. Typically, the Article 81 Guardianship is associated with an elderly person suffering from an illness such as dementia or Alzheimer’s disease or a person who has suffered a severe physical event such as a stroke or heart attack. These situations are a garden variety basis for the appointment of a Guardian for property management and personal needs.

New York Guardianship attorneys, however, are familiar with the many other situations in which a Guardian may be needed. For example, in many instances, younger individuals may be incapacitated due to mental or physical disabilities that are birth related. In these situations, a Guardian may be necessitated not only for personal needs but also to handle monetary awards or funds the person may be entitled to due to a settlement from a lawsuit. The Guardianship Court is often asked to allow the establishment of a Supplemental Needs Trust to hold these funds so that the incapacitated person does not lose the benefit of governmental programs such as Social Security Disability or Medicaid.

Many guardianship cases also involve issues relating to the housing of the person who is incapacitated. Such person may live in a rental apartment or even own a cooperative apartment. Due to the person’s incapacity, the rent or maintenance due on the apartment may go unpaid and subject the person to possible eviction or termination of their leasehold interest.

Other events that may result in eviction proceedings or lease terminations are where the tenant creates a nuisance by engaging in loud or abusive conduct or exhibits Collyers Syndrome which is the excessive hoarding and accumulation of items in the apartment. These activities create a climate where both the incapacitated individual and other tenants in the building are at risk.

When a person is exhibiting the above described behavior, the building management may commence eviction proceedings or, sometimes, contact Adult Protective Services of the New York City Human Resources Administration to intervene. APS will attempt to provide the tenant with assistance, if possible.

A Manhattan Guardianship lawyer, Queens Guardianship lawyer or Brooklyn Guardianship lawyer who represents a family member attempting to obtain appointment as a Guardian,
can ask the Guardianship Judge to issue a stay or injunction to stop the eviction proceedings of the incapacitated person until a Guardian has been appointed. Such relief is usually granted by the Court.

The New York Probate Lawyer Blog has discussed in previous posts that a Guardian will be appointed by the Court if the Court determines by “clear and convincing evidence” that a person is incapacitated. New York Mental Hygiene Law (“MHL”) section 81.02. When a Court is considering the case, it will review the ability of the person to manage activities of daily living such as “money management”, “grooming”, and “housing”. MHL section 81.03 (h). Therefore, when a person fails to pay rent or creates a nuisance or dangerous condition in an apartment, such activity is evidence of incapacity.

I have represented many clients who have petitioned to be Guardians in situations where their friends or relatives are on the verge of eviction or lease termination due to failure to pay rent or creating a nuisance condition. In these cases, quick action and Court filings are often needed to obtain a stay of the eviction and prevent the loss of the incapacitated person’s apartment. Once appointed, a Guardian is usually able to pay the back rent or correct the nuisance condition so that the apartment which is the incapacitated person’s home can be retained.

October 17, 2012

New York Estates and Guardianships May Involve Landlord-Tenant Proceedings

by Jules M. Haas

Many New York Estates and New York Guardianships contain assets in the form of real estate such as single or multi-family homes. Other possible assets can also include a condominium or cooperative apartment. These properties are a valuable, and many times the most valuable, asset owned by a decedent or an incapacitated person.

Problems often arise when the estate Executor or Administrator or Article 81 Guardian need to sell these assets to make a monetary distribution to beneficiaries or to pay expenses. Frequently, there are other persons who are living in these properties and remain there after the appointment of the fiduciary and they refuse to vacate the premises to allow the property to be marketed and sold. Persons who may be living in a house or apartment can range from children of the decedent or the incapacitated person to third party friends.

When a situation arises requiring the removal of a person from property as described above, the most common procedure is to file a Summary Eviction proceeding in the County where the property is located. This is the most common and expeditious method especially when dealing with non-relative occupants. For example, if the decedent had a Queens Probate or Brooklyn Probate and left a house in such County, the eviction proceeding would be filed in the Landlord-Tenant Part of the New York City Civil Court in such County.

Landlord-Tenant proceedings can be complicated and it is a good practice to obtain legal guidance from an attorney with experience in these matters. I have represented many individuals in Landlord-Tenant cases throughout New York. In an eviction case, there is usually an initial Notice sent to the occupant advising him or her to vacate by a certain date or Court proceedings will then be commenced. If the person fails to vacate as demanded in the Notice, a proceeding is filed in the Court to have the person evicted.

While eviction proceedings are “Summary” in nature, meaning that the process to have a Judge hear and determine a case is streamlined, the procedural aspects of these cases usually result in many adjournments and extensions. The ultimate consequence is that the Estate Administration or Settlement can be delayed for many months until the eviction process is completed.

In the Guardianship setting, a reverse scenario may occur. When a person becomes incapacitated they may be unable to pay the rent on the apartment where they live. Due to this non-payment of rent, the landlord may start an eviction proceeding against an incapacitated person who may be unable to defend himself or herself until a Guardian is appointed. In such situations, when a petition for Guardianship is initially filed with the Court, the Court may issue an Order Staying or putting on hold the eviction case until a Guardian is appointed who can either pay rent or otherwise defend the incapacitated person’s interest. Mental Hygiene Law section 81.23 provides that the Guardianship Court has the power to grant such a provisional remedy. There have been many instances when I have represented persons to be appointed as an Article 81 Guardian when I have obtained this type of relief and prevented the incapacitated person from being evicted from his or her home.

The ownership of real estate and tenancy rights relating to Estate and Guardianship proceedings can be very complicated and involve very valuable interests. As a New York Guardianship and New York Estate and Trust Lawyer, I have helped my clients recognize and deal with these issues.