NYC Guardianship Attorney
In general, guardianship is an arrangement where the Court gives an individual or, in some cases, an organization, the legal right to make decisions on behalf of, and for the benefit of another person, who is no longer able to make those decisions and is unable to sign a Power of Attorney. A NYC Guardianship Attorney can help you apply for guardianship over a loved one. A NYC Guardianship Attorney can also assist you with the creation of Supplemental Needs Trusts and help you with your Elder Law needs, which includes Medicaid Planning.
How do You know when you Need a Guardian or a NYC Guardianship Attorney?
A Guardian may be necessary if:
- You recognize that you need help with decision making and prefer judicial oversight over the person who will make your decisions; or
- There are no Advance Directives in place; or
- A person is “flip-flopping” between agents and signing multiple Powers of Attorney; or
- A person has been, or, is being exploited; or
- A person cannot independently perform their activities of daily living; or
- A person is unable to manage their finances; or,
- A person is in a health care facility and unable to make the appropriate decisions to be discharged.
What Types of Legal Guardianship Options are There and How can A NYC Guardianship Attorney Help?
In New York, there are three types of legal guardianship arrangements. These are Article 17, Article 17A, and Article 81. Mental Hygiene Law Article 81 Guardianship is intended for an incapacitated adult. Surrogate’s Court Procedures Act Article 17 Guardianship is intended for a minor without disabilities. Surrogate’s Court Procedures Act Article 17A Guardianship is intended for an individual whose disabilities onset prior to the age of 22, or, a person who incurred a traumatic brain injury. Article 81 Proceedings are typically handled in Supreme Court. Article 17 and 17A proceedings are typically handled in Surrogate’s Court. You may want to speak with a NYC Guardianship Attorney to learn more about the differences.
When will an Article 81 Guardian of the Person and/or Property be Appointed and what can a NYC Guardianship Attorney Do?
As a NYC Guardianship Attorney will tell you, New York Mental Hygiene Law 81.02 sets forth the standard for the appointment of a guardian. The statute provides that the Court should appoint a guardian for an individual when:
The appointment is necessary to provide for the personal needs and property management of the Person AND
either (i) the person consents to the appointment OR
(ii) the person is shown to be incapacitated by clear and convincing evidence.
Thus, as a NYC Guardianship Attorney will explain to you, there are two things that have to be demonstrated to the Court. First, it must be demonstrated the guardianship is necessary. After that determination is made, it must be demonstrated that the person either lacks capacity or consents. Necessity can be demonstrated by showing that an individual is either being exploited, or unable to manage their activities of daily living, or, is at risk of harm.
Who may Commence an Article 81 Guardianship Proceeding and Do you Need a NYC Guardianship Attorney?
The person who is alleged to be incapacitated is known as the AIP. Pursuant to MHL 81.06, a guardianship proceeding can be commenced by:
- the person alleged to be incapacitated; or
- the next of kin of the AIP (eg: spouse, child, parent, sibling); or
- an executor or administrator when the AIP is the beneficiary of an estate; or
- a trustee of a trust when the AIP is the beneficiary of a trust; or
- a person with whom the AIP resides; or
- a person otherwise concerned with the welfare of the AIP; or
- a facility where the AIP is either a patient or a resident.
- note that a guardianship attorney can also commence the proceeding
How is an Article 81 Guardianship Proceeding Commenced and Do you Need a NYC Guardianship Attorney?
The proceeding is commenced or initiated by filing an Order to Show Cause and Verified Petition with the Supreme Court in the County where the AIP resides. A NYC Guardianship Attorney can help you prepare the paperwork.
The Petition is your opportunity to tell your story. Pursuant to MHL 81.08, the Verified Petition should set forth the following information:
1. the name, age, address, and telephone number of the person alleged to be incapacitated;
2. the name, address, and telephone number of the person or persons with whom the person alleged to be incapacitated resides, if any, and the name, address and telephone number of any persons that the petitioner intends to serve with the order to show cause and the nature of their relationship to the alleged incapacitated person;
3. a description of the alleged incapacitated person’s functional level including that person’s ability to manage the activities of daily living, behavior, and understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living;
4. if powers are sought with respect to the personal needs of the alleged incapacitated person, specific factual allegations as to the personal actions or other actual occurrences involving the person alleged to be incapacitated which are claimed to demonstrate that the person is likely to suffer harm because he or she cannot adequately understand and appreciate the nature and consequences of his or her inability to provide for personal needs;
5. if powers are sought with respect to property management for the alleged incapacitated person, specific factual allegations as to the financial transactions or other actual occurrences involving the person alleged to be incapacitated which are claimed to demonstrate that the person is likely to suffer harm because he or she cannot adequately understand and appreciate the nature and consequences of his or her inability to provide for property management; if powers are sought to transfer a part of the alleged incapacitated person’s property or assets to or for the benefit of another person, including the petitioner or guardian, the petition shall include the information required by subdivision (b) of section 81.21 of this article;
6. the particular powers being sought and their relationship to the functional level and needs of the person alleged to be incapacitated;
7. the duration of the powers being sought;
8. the approximate value and description of the financial resources of the person alleged to be incapacitated and whether, to the best of the petitioner’s knowledge, the person is a recipient of public assistance;
9. the nature and amount of any claim, debt, or obligations of the person alleged to be incapacitated, to the best of the petitioner’s knowledge;
10. the names, addresses, and telephone numbers of presumptive distributees of the person alleged to be incapacitated as that term is defined in subdivision forty-two of section one hundred three of the surrogate’s court procedure act unless they are unknown and cannot be reasonably ascertained;
11. the name, address, and telephone number of the petitioner;
12. the name, address, and telephone number of the person or persons, if any, proposed as guardian and standby guardian, the relationship of the proposed guardian or standby guardian to the person alleged to be incapacitated, and the reasons why the proposed guardian or standby guardian is suitable to exercise the powers necessary to assist the person alleged to be incapacitated;
13. any relief sought pursuant to section 81.23 of this article;
14. the available resources, if any, that have been considered by the petitioner and the petitioner’s opinion as to their sufficiency and reliability;
15. any other information which in the petitioner’s opinion will assist the court evaluator in completing the investigation and report in accordance with section 81.09 of this article.
The Order to Show Cause will recite the powers requested, have spaces for the Judge to appoint a Court Evaluator, and if necessary, a temporary guardian and an attorney for the AIP. The Order to Show Cause will also set forth the date and time of the hearing and the powers that are requested. The Verified Petition typically sets forth the AIP’s functional limitations and the reasons that the Petitioner believes that a Guardian is necessary. A guardianship attorney can assist you with these papers.
After the Judge signs the Order to Show Cause, the appropriate papers have to be distributed among the various parties. Each County has a separate Guardianship County Clerk’s office. When you are ready to file your papers, visit the Guardianship clerk’s office in the county you are applying in for more information.
Who Receives a Copy of the Article 81 Guardianship Papers?
The AIP is personally served with a copy of all of the papers. The Court Evaluator gets a copy of the papers. If the Court appoints an attorney for the AIP, then the attorney for the AIP receives a copy of all of the papers as well. The Petitioner, Court Evaluator, AIP, and attorney for the AIP are the only “parties” to the proceedings. A NYC Guardianship Attorney can assist you with properly serving all parties.
The AIP’s family members and concerned relatives are “interested persons” but are not necessarily parties and are not immediately entitled to a full set of all of the papers. These “interested persons” only receive a Notice of Proceeding and a copy of the Order to Show Cause. In order to receive a full copy of the petition, these “interested persons” must typically appear in the proceeding and file a cross-petition seeking to be appointed guardian or seek other relief.
What Happens at an Article 81 Guardianship Hearing?
A guardianship proceeding can be contested or uncontested. Regardless of whether the hearing is contested or uncontested, the Petitioner has the burden of proving, by clear and convincing evidence, that the AIP needs a Guardian. The Petitioner, who is usually represented by a NYC Guardianship Attorney, goes first and present his case in chief. This may mean obtaining testimony from the Petitioner, the AIP’s social worker, the AIP’s friends, neighbors, and other family members. If Counsel for the AIP has been appointed, then Counsel for the AIP will have an opportunity to ask questions.
After the Petitioner rests, if the petition is uncontested, then the Judge will typically ask the Court Evaluator to testify as to the Court Evaluator’s observations. The Court Evaluator has probably met with all of the parties prior to the parties appearing in Court, and typically is able to render an opinion and recommendations about the situation, including who should be the guardian. (If the hearing is contested, then the Court Evaluator will typically not speak until after the Cross-Petitioner has had an opportunity to present his side of the story.)
The interesting thing about Article 81 guardianship is that testimony of the AIP’s medical professional and treating physician is neither admissible nor required. This is rooted in the notion that Article 81 incapacity is based upon functional limitation and not on the reports of the AIP’s medical team. In addition, allowing the AIP’s medical team to testify raises issues about physician-patient privilege. That being said, independent medical testimony is permissible.
After all sides have presented their cases, then the Judge will set forth their findings on the record. The Judge will then ask that a party (usually the Petitioner) settle the final Order and Judgment. The person settling the Order on Notice should then get the transcript from the Court Reporter and should prepare a notice of settlement, with proposed Order and Judgment. If the Petitioner wants the Court to award fees from the funds of the Alleged Incapacitated Person, then the Petitioner should also submit his Affirmation of Legal Services to the Court. The Judge decides how much to award in fees.
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Regina Kiperman is a NYC Guardianship Attorney. Guardianship is discussed in greater detail in the my blogs. My goal is to simplify your life and assist you with your endeavors.
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