New York Probate Lawyer Blog
The appointment of a Guardian for personal needs or property management is provided for by Article 81 of the Mental Hygiene Law. This statute contains the numerous provisions regarding the procedure and substantive law for a New York Guardianship. The New York Probate Lawyer Blog has published many articles regarding Guardianship issues.
As a recap, a Guardianship is appropriate when a person is found to be incapacitated. Incapacity is viewed in a functional setting dealing with a person’s ability to handle his various activities of daily living. These activities include activities such as taking care of financial affairs, personal hygiene, shopping, and attending to health care and providing for meals. When a person cannot functionally care for themselves, and lacks the insight as to their welfare and would be at risk if a Guardian is not appointed, then a Court will see that a Guardian is needed.
When a Guardianship petition is filed, the Court usually appoints a Court Evaluator to investigate the case, and sometimes, an attorney to represent the interests of the alleged incapacitated person (“AIP”). Article 81 requires that clear and convincing evidence be presented before a Guardian is appointed. This is due to the inherent removal of certain liberties which a Guardianship requires. The least restrictive form of intervention is allowed and the AIP’s interests are of paramount importance.
The Guardianship procedure requires a hearing with the Court. Various people are called to testify including the petitioner, the Court Evaluator and other witnesses. Sometimes the proceedings are contested and acrimonious. Various family members may be opposing each other to be appointed. In other cases, there is opposition by the AIP and others to the imposition of a Guardianship.
In a recent Guardianship case, an interesting issue was raised as to whether some of the parties could discontinue a Guardianship proceeding during the course of a hearing. The case involved was Estate of Lane, which was in Supreme Court, Nassau County, before Justice Gary F. Knobel. In a decision dated December 20, 2022, the Court determined that the proceeding could not be discontinued, and denied an oral application for discontinuance.
Estate of Lane was a contested matter. It involved the AIP, the petitioner, a Court Evaluator, a temporary guardian, a Court appointed attorney, and a geriatric care manager. After the commencement of a trial lasting several days, the petitioner, temporary guardian, geriatric care manager, and Court Evaluator all testified. At that point, and before the conclusion of all testimony, the petitioner made an oral application, supported by the attorney for the AIP, to discontinue the proceeding. The temporary guardian and Court Evaluator opposed the application.
The discontinuance was premised upon CPLR 3217, entitled “Voluntary discontinuance”. Judge Knobel provided an extensive analysis of the statute and noted that there were no clear statutory provisions relating to the discontinuance of an Article 81 proceeding. However, in view of the fact that the matter had gone to a trial phase, the Court concluded that a discontinuance was only possible with a Court order. The Court refused to approve the discontinuance in view of the evidence presented that the AIP appeared to need a Guardian.
Guardianship cases can be very complicated. Representation by a Guardianship lawyer may be essential. I have represented clients in New York Guardianship matters for over 40 years. Do you have a question regarding 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.