New York Probate Lawyer Blog
As a New York Guardianship lawyer for over 35 years, I have encountered many different situations in these types of cases. Article 81 of the Mental Hygiene Law (MHL) provides the various statutes concerning the basis and procedure for the appointment of a Guardian for property management and personal needs.
MHL Section 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” sets forth that a person who files a petition to have a Guardian appointed must present clear and convincing evidence that an appointment is warranted and that the alleged incapacitated person is incapacitated. It needs to be shown that a person would suffer harm without the appointment because their personal and property needs cannot be handled and such person does not appreciate their own inability to attend to their affairs. The New York Probate Lawyer Blog contains many articles regarding Guardianship matters.
Demonstrating to the Court that a Guardianship should be imposed is not always easy. In fact, if a petition for a Guardianship due to alleged incapacity is filed and the Court dismisses the case, the party filing the papers may be held responsible for various costs by the Court. This was the situation in a recent Manhattan Guardianship case entitled In the Matter of Cynthia W. This proceeding was filed by the son of an alleged incapacitated person who was the petitioner’s 85-year-old mother. The case was quite litigious. Initially, the Court had made a number of procedural rulings which included a direction that the petitioner was not allowed to call his mother as a witness and that he would be prevented from introducing medical evidence concerning his mother’s condition. The Court noted that Article 81 proceedings concern a person’s functional limitations and that the mother had a right to invoke the doctor-patient privilege. In these matters the Court focuses on a person’s ability to engage in activities of daily living.
After the presentation of the case, the Court found that the petitioner did not present clear and convincing evidence that the mother needed a Guardian. Also, the mother already had advance directives in place such as a healthcare proxy and power of attorney naming her husband as agent.
Since the matter was dismissed as having no merit, the Court directed that the petitioner pay all the costs of the proceeding including the fees for the Court Evaluator and the attorney representing the mother.
I have represented clients in many Guardianship cases throughout New York, including Queens Guardianship, Brooklyn Guardianship and Manhattan Guardianship. The retention of an experienced attorney in these matters is important. Call me now for a free review of your Guardianship issue. We provide 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.