Did you know that you a Court appointed Mental Hygiene Law (“MHL”) Article 81 Guardian must seek court approval to make repairs?
Under New York’s Mental Hygiene Law (MHL) Article 81, guardians appointed to manage the affairs of an incapacitated person (the “ward”) have a fiduciary duty to act in their best interests. This responsibility includes maintaining the ward’s property in a safe and habitable condition.
MHL § 81.21(a) grants guardians the power to handle the ward’s property, including the power to make repairs, while MHL § 81.22(a)(1) requires the guardian to provide for the personal needs of the ward, which can include ensuring safe housing conditions.
However, in certain circumstances, a guardian must petition the court before making repairs or improvements, particularly when substantial expenditures are involved.
When Is Court Approval to Make Repairs Required?
While a guardian typically has broad powers to manage a ward’s property, some actions—such as selling real estate, making large repairs, or using significant funds—require judicial approval. Specifically, a guardian must petition the court when:
- The repair is substantial or involves a major alteration – Routine maintenance (such as fixing a leaking faucet or replacing a broken window) does not require court approval. However, larger repairs, such as a new roof, major plumbing or electrical work, or structural renovations, generally require a court order.
- The cost exceeds the guardian’s authorized spending limit – The Order and Judgment appointing a guardian may specify financial limitations on repairs. If a repair’s cost exceeds that limit, the guardian must seek court approval.
- The repair involves real estate owned by the ward – If the guardian intends to make repairs to a property that the ward owns, especially if the repair impacts the property’s value or sale potential, the court must approve the expenditure.
- The repair requires accessing restricted assets – If the guardian needs to use funds from a restricted account, trust, or investment portfolio to pay for the repair, they must obtain court authorization.
How to Petition the Court to Make Repairs
To obtain court approval, the guardian must file a petition that includes:
- A description of the repair needed, including why it is necessary for the ward’s health, safety, or financial interests.
- A cost estimate, including quotes from contractors or service providers.
- An explanation of funding, specifying which of the ward’s assets will be used to cover the repair.
- Supporting documentation, such as photos of property damage or expert recommendations.
Depending on the county and the level of urgency, you can file the petition either with an Order to Show Cause or a Notice of Motion.
The court will review the petition and may hold a hearing to determine whether the repair is in the ward’s best interest. If approved, the court will issue an order authorizing the guardian to proceed with the repair and to access the necessary funds.
Consequences of Failing to Petition the Court to Make Repairs
If a guardian makes unauthorized repairs without first seeking court approval, they may face legal consequences, including:
- Personal liability for unauthorized expenditures.
- Court sanctions or removal as guardian.
- Potential allegations of mismanagement of the ward’s assets.
Final Thoughts
New York’s guardianship laws aim to protect incapacitated individuals by ensuring their assets are managed responsibly. MHL § 81.21(a) and MHL § 81.22(a)(1) make it clear that guardians have a duty to maintain the ward’s property in a habitable condition, but major repairs often require court approval. If you are a guardian and need to make significant repairs to a ward’s property, it is crucial to follow the legal process by petitioning the court when required. Consulting with an attorney who specializes in MHL Article 81 guardianships can help navigate the process and ensure compliance with the law.
If you have questions about guardianship responsibilities or court petitions, feel free to contact RK Law PC for legal guidance.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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