shutterstock_1465659569-300x201The primary guardianship law in New York is contained in Article 81 of the Mental Hygiene Law (“MHL”) which is entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management.”  The New York Probate Lawyer Blog contains many posts discussing guardianship law and procedure.

When a guardian is appointed, the New York Courts grant an Order which specifies and limits the powers which the guardian can exercise regarding the personal affairs and property management of the incapacitated person.  However, before a guardian is appointed, there are numerous safeguards in the law intended to protect the rights of a person who is alleged to be in need of a guardianship.  The recent case involving Britney Spears, while occurring in a state other than New York, brings to light the importance of adhering to and implementing these safeguards.

For example, before a guardian can be appointed, MHL Section 81.02 requires that the appointment is necessary to provide for someone’s personal and property needs and that the person is incapacitated.  The statute goes on to provide that incapacity must be based upon clear and convincing evidence and show that a person will suffer harm because of their inability to attend to their affairs and that the person does not understand and appreciate their inability to meet their own needs.