NYC Article 81 Guardianship – Person in Need of a Guardian vs. Incapacitated Person
What is the difference between a person in need of a guardian (“PING”) and an incapacitated person (“IP”)? The simple answer is that a person in need of a guardian has the ability to give consent to the appointment of a guardian and is not determined an incapacitated person by the Court.
The purpose of a NYC Article 81 Guardianship proceeding is to determine whether an alleged incapacitated person requires assistance from another (a Guardian) to manage their activities of daily living and property management. In order to have a guardian appointed, a petitioner must prove two things.
According to MHL 81.02, first the petitioner must prove that there is a need or necessity for the guardianship (presumably because there is risk of harm without a guardian). Second, the petitioner must prove that either (i) the person is incapacitated, or (ii) that the person consents to the appointment of a guardian.
Person in Need of a Guardian
Although Article 81 Guardianship in NYC is always intended to create the least restrictive structure, a PING is typically able to continue to maintain more autonomy and independence because they have the ability to consent to or refuse certain help. For example, a PING can consent to just having somebody help manage their property and pay their bills. They may not necessarily require somebody to make medical decisions for them. A PING can also withdraw their consent to the guardianship. If the PING withdraws their consent, they can stop agreeing to accept the help. A PING can also more easily move to terminate the guardianship.
PING’s are typically people who have become a little confused or forgetful. They are able to answer all of your questions and are able to take care of some, but not all, of their personal needs. They are able to manage their activities of daily living (meaning, they can cook, eat, go to the doctor, get dressed) but they may have difficulty remembering to schedule their appointments or remembering to pay their bills. Sometimes, PING’s are vulnerable and easily subject to financial abuse and exploitation.
One of the larger concerns about PINGS is that they can refuse to allow for a guardian to expand their powers or becomes incapable of consenting to the expansion of powers. In either situation, a conflict is created between the PING and the guardian. The only option a guardian may have at that point is to bring an entirely new proceeding, by way of Order to Show Cause, asking that the PING be declared an IP.
An Incapacitated Person (“IP”) on the other hand is one who does not have capacity to consent to a guardianship. An IP is (i) unable to manage their personal needs and/or property management and also (ii) does not understand and appreciate the nature and consequences of their inability to make manage their affairs.
IP’s are typically people who require assistance with all activities of daily living. They require assistance with all aspects of their property management. They are unable to manage their finances, are not able to pay their bills, are not able to handle their property. Sometimes an IP will forget to eat. Although Article 81 Guardianship is not diagnoses driven, usually an IP has had a stroke, or has advanced Parkinson’s or advance dementia or Alzheimer’s.
We can help you work through the guardianship process and help you figure out whether the alleged incapacitated person is PING or an IP and how best to help them.
Additional resources provided by the author
For more information, please contact probate and estate planning attorney Regina Kiperman:
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