Article 81 of the New York Mental Hygiene Law (MHL) sets forth the rules and procedures for the appointment of Guardians for an incapacitated person. The statute’s title is “Proceedings For Appointment of a Guardian For Personal Needs or Property Management”.
The main focus of the statute is to protect individuals who are incapacitated. Functionality is important to the Court in making its determination. Whether a person can engage in activities of daily living such as personal hygiene, and handling routine financial matters is scrutinized by the Court.
In the typical Guardianship case a petition is filed with the Court which details the reasons upon which a Guardian for personal needs or property management should be appointed.
Once the petition is approved by the Court, a date is set for a hearing. During the hearing stage witnesses can testify and documentary evidence can be presented to the Court. The New York Probate Lawyer Blog contains numerous articles about Guardianship.
After a full review the Court makes a decision as to whether a Guardian should be appointed and which person is to actually serve as the Guardian.
However, the appointment of a Guardian is not always the end of the story. The statute contains provisions that provide for the modification and termination of a Guardianship. MHL 81.36 is entitled “Discharge or modification of powers of guardian”. In the situation where the relief sought is to terminate a guardianship or to allow the incapacitated person to regain some powers previously lost, the burden of proof is on the party opposing the termination or modification. This gives the incapacitated person an advantage when attempting to terminate guardianship powers.
In a recent Manhattan Guardianship case entitled Matter of Banks v. Richard A., decided on April 26, 2019, Supreme Court Justice Lillian Wan, terminated a Guardianship. The case is particularly interesting because the incapacitated person had originally consented to the Guardianship. With regard to the termination, the Court took the position that in order to oppose the termination, the opposing party needed to seek a Guardianship by presenting clear and convincing evidence that the person was incapacitated. In Banks, there was no determination of incapacity because of the initial consent. The Court determined that in this type of case involving a consensual Guardianship it was not sufficient to just oppose the termination by only showing that the appointment of a Guardian is necessary.
I have represented many individuals in Guardianship cases. The Courts have appointed me to serve as both a Court Evaluator and attorney for the incapacitated person. If you have a question or concern regarding a Guardianship matter, call me now for a free discussion. We provide reasonable and flexible fee arrangements and personal representation.
New York Guardianship Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to Guardianships and incapacity throughout New York City including Queens County and the Bronx. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.