New York Guardianship proceedings are controlled by Article 81 of the Mental Hygiene Law (“MHL”) entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management.” The New York Probate Lawyer Blog has published many articles concerning Guardianship.
The essence of appointing a Guardian concerns a determination that a person is incapacitated. Incapacity, contrary to its connotation that a person is completely incapable of handling personal needs or property matters, is really a case by case individual determination of abilities. The inquiry is to examine a person’s functional ability as it relates to handling activities of daily living. According to MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment,” incapacity needs to be shown by clear and convincing evidence. There must be a determination that a person will likely suffer harm because they cannot provide for their needs and that the person cannot appreciate and understand the consequences of their disability.
In a typical case, a petition is filed with the Court. The Court then sets a date for a hearing. All close family members are given notice as well as other interested parties. The alleged incapacitated person usually has a Court-appointed attorney and the Court may appoint a Court Evaluator. The Evaluator reviews the case, interviews parties, and provides the Court with a report and recommendations.