New York Probate Lawyer Blog
Article 81 of the New York Mental Hygiene Law contains the provisions regarding the appointment of a Guardian. As discussed in earlier posts in the New York Probate Lawyer Blog, when a person is found to be incapacitated the Court can appoint a Guardian for personal needs and also for property management.
A Guardianship case is commenced by the petitioner who files a proposed Order to Show Cause and a Verified Petition with the Court. Upon receipt of these papers, the Court will review the allegations to determine whether it will sign the Order.Initially, the Court will want to make sure that it has the jurisdiction to hear the case. MHL Section 81.04 entitled “Jurisdiction” provides the guidelines as to whether the Court has the power to provide requested relief in any particular case. For example, the above section states that the Court will have the power to rule where the person who is the subject of the proceeding is a resident of New York.
A question concerning jurisdiction arose in a recent case decided on September 18, 2015 by Bronx Supreme Court Justice Alexander Hunter, Jr., entitled Matter of J.J.M. In J.J.M. the alleged incapacitated person (“AIP”) sought to dismiss the proceeding based upon the Court’s alleged lack of jurisdiction. Apparently, the AIP had recently moved to Massachusetts with the intent of abandoning his 20 year Bronx residence. However, the Court found that it had judicial power to rule in the case because the AIP still maintained an apartment in the Bronx and had at least one New York bank account. The Court found these facts to be enough to determine that the AIP had sufficient connection to New York.
Another issue that arose in J.J.M. concerned the notice that the petitioner’s attorney was required to provide regarding certain provisional relief that was part of the Order to Show Cause. In the Order the Court restrained the AIP’s wife and certain financial institutions from transferring the AIP’s assets. MHL Section 81.23 entitled “Provisional remedies” provides for injunctions and temporary restraining orders. The Court found that the notice concerning these restraints that was required to be given by petitioner’s attorney to the affected parties was properly provided.
I have represented numerous clients who have filed petitions seeking the appointment of a personal needs and property management Guardian. In many situations I have asked the Court to grant provisional remedies such as injunctions and temporary restraining orders. Such relief can be very useful to prevent the exploitation or transfer of an AIP’s property and bank accounts. Restraining Orders can also be used to stop a landlord from evicting an AIP from a residence pending the outcome of the Guardianship matter. If you have any questions regarding Guardianship or the availability of temporary restraining orders to protect a bank account or stop an eviction, call me now for a free discussion regarding 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 and Nassau Counties. If you or someone you know is involved with or has questions about a New York Guardianship matter, please contact me at (212) 355-2575 or email: jules.haas@verizon.net, for an initial consultation.
Jules Martin Haas provides his clients and members of the community with a free monthly e-newsletter which contains articles covering a variety of legal topics including estate planning, financial matters and real estate. If you wish to be placed on the e-newslist, simply e-mail me at jules.haas@verizon.net.