New York Probate Lawyer Blog
Article 81 of the New York Mental Hygiene Law contains the provisions for the appointment of a Guardian. Guardianship can involve an appointment for personal needs such as health care or living environment. There is also a Guardianship for property management which concerns a person’s financial affairs. The New York Probate Lawyer Blog contains many posts relating to Guardianships.
As has been discussed in earlier blogs, MHL Section 81.02 provides that a Guardian may be appointed when or if it is found to be necessary for personal needs or property management and that a person is incapacitated. This means that the alleged incapacitated person (“AIP”) will suffer harm because they cannot understand and appreciate the consequences and nature of their disability.
Many Guardianship cases are relatively uncomplicated in that the AIP is clearly unable to handle his affairs and that a failure to appointed a Guardian would pose a risk to the personal and/or financial needs of the person. For example, a person who is paralyzed due to a stroke is in need of assistance. Nevertheless, there are many cases where litigation and conflict arise. The imposition of a Guardian requires the presentation of clear and convincing evidence (MHL Section 81.02(b)).
In most cases, the Court will appoint a Court Evaluator and an attorney to safeguard the AIP’s interests. An AIP may oppose the imposition of a Guardianship on a number of grounds. It may be asserted that the AIP is not incapacitated and is perfectly capable of handling his own affairs. At a Guardianship hearing, the AIP and the person seeking the Guardianship can testify. Also, third-party witnesses may be called regarding factors concerning the AIP’s ability to sufficiently handle activities of daily living.
Another basis for contesting a Guardianship is that the AIP had previously executed advance directives. Advance directives include documents such as a Durable Power of Attorney, Health Care Proxy, or Revocable Living Trust. These papers provide a means by which someone who has lost capacity can put into place persons and directions for the handling of personal and property affairs. When properly executed advance directives exist, they may obviate the need for a Court-appointed Guardian. Of course, the persons who are designated as agents under Powers of Attorney and Health Care Proxies must act in good faith and in the best interests of the appointing person.
In a Guardianship case, the Court has the authority to review the validity of advance directives and whether the agents are acting properly. If the Court finds that the directives were the product of undue influence or that the principal lacked capacity to create and sign the papers, then the Court may revoke the directives and appoint a Guardian. Also, a Court may revoke advance directives if it finds that an agent is not acting in the best interest of a principal.
As can be imagined, there are many issues which arise in Guardianship proceedings which can cause extensive litigation. I have been representing clients in Article 81 Guardianship cases for over forty (40) years. Do you have a question regarding a Guardianship? Call Me Now for a free confidential review of your issue. 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.