New York Probate Lawyer Blog
Article 81 of the Mental Hygiene Law (MHL) contains the provisions regarding the appointment of a Guardian for property management and personal needs for a person who is found to be incapacitated. The New York Probate Lawyer Blog has discussed in earlier posts the procedure to obtain the appointment of a Guardian. Typically the proceeding is commenced by the filing of a petition with the Court along with a proposed Order to Show Cause. MHL Section 81.08 sets forth the information to be included in the petition. This information includes the name and address of the alleged incapacitated person’s (AIP) closest next of kin who are also given notice regarding the commencement of the Court case.
In some cases, a relative or other interested person may file a cross-petition with the Court in which they oppose the appointment of a Guardian or ask the Court to appoint the cross-petitioner as the Guardian rather than the original petitioner.A recent case decided by Brooklyn Supreme Court Justice Kathy King on March 27, 2015, entitled Matter of Cox, provides an interesting example of competing petitions for Guardianship. In Cox, a son of the AIP commenced a Guardianship case and asked the Court to appoint him as property management and personal needs Guardian for his mother. Thereafter, one of the AIP’s daughters opposed the petition and cross-petitioned to be appointed as Guardian.
During the hearing, the Court heard testimony from the petitioner and cross-petitioner and also from other members of the family including other children of the AIP. Also, there was testimony by the Court Evaluator. MHL Section 81.09 provides for the appointment by the Court of a Court Evaluator whose duties include investigating the circumstances of the case and making a written report with recommendations for the Court to review.
The facts in Cox included the circumstance that the cross-petitioning daughter had been appointed as the attorney-in-fact for her mother under a Power of Attorney and as the Health Care Agent for her mother in a Health Care Proxy.
After reviewing all of the evidence, the Court made a number of determinations. Judge King revoked both the Power of Attorney and the Health Care Proxy. The Court found that the daughter violated her fiduciary duties as attorney-in-fact by failing to properly provide an accounting of her transactions. The Court also found that the Health Care Proxy was signed by the mother at a time when the mother lacked capacity.
However, even though the Power and Proxy were revoked, the Court appointed the daughter as the Guardian of the person and property for her mother and found that the daughter satisfied the criteria of MHL 81.19(d).
I have represented many persons in connection with petitions and cross-petitions in contested Guardianship cases. It is always important to provide the Court and the Court Evaluator with information so that a proper decision can be made to protect the interests of the AIP. If you have a question concerning a Guardianship matter call me to discuss your issue.
New York Guardianship Attorney Jules Martin Haas, Esq. has been representing clients in New York Guardianship Proceedings throughout the past 30 years in New York, including Queens Guardianship and Nassau Guardianship. If you or someone you know is involved with or has questions about a New York Guardianship, please contact me at (212) 355-2575 or email: jules.haas@verizon.net, for an initial consultation.
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