New York Probate Lawyer Blog
Article 81 of the Mental Hygiene Law (MHL) provides the statutory provisions for adult Guardianship. Pursuant to this statute the Court is given the authority to appoint a Guardian for personal needs and/or property management. The New York Probate Lawyer Blog has published many articles regarding Guardianship as well as estate and trust issues.
As provided in MHL section 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” a Guardian may be appointed if it is determined that a person is incapacitated. A finding of incapacity must be based upon clear and convincing evidence that a person will suffer harm because they cannot attend to their personal or property needs and they do not understand or appreciate their disability.
These cases are typically filed in the Supreme Court in the County where the alleged incapacitated person is located. So, if a person is hospitalized in Brooklyn or Manhattan, such County is where the matter will be filed. A Guardianship proceeding is commenced by filing a Verified Petition and an Order to Show Cause with the Court. The Petition sets forth all of the information regarding the alleged incapacitated person including the nature of his disability, assets, family and the circumstances requiring the need for the appointment. After reviewing all of the papers submitted, the Court will sign an Order to Show Cause which contains the date, place and time of the hearing. It also contains the name of the persons appointed by the Court to act as Court Evaluator and Counsel for the alleged incapacitated person.
Another important aspect concerning these proceedings is that the Court’s determination is going to be based upon functionality as opposed to just a medical diagnosis. It is important to examine the extent to which a person can sufficiently handle their activities of daily living such as the ability to care for themselves and perform personal and financial functions. In most cases the Court will not allow testimony or evidence as to a person’s medical diagnosis or medical condition. As can be imagined, there is a fine line which separates medical information from a description of a person’s functionality.
Interestingly, MHL section 81.09 entitled “Appointment of Court Evaluator” allows a Court Evaluator to obtain permission from the Court to inspect medical, psychological and other types of private records of the alleged incapacitated person. The statue allows this disclosure notwithstanding a physician/patient privilege. Clearly, this provision allows the Court to gain a more complete insight into whether a person is in need of a Guardianship appointment.
I have represented clients in Guardianship cases in New York for over 40 years. These matters can be complicated and involve sensitive family interactions. Sometimes a Guardianship is needed to protect a person from financial exploitation. Call me now for a free confidential review of your Guardianship question. We offer flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules 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. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.