Responsibilities, Powers, and Duties of a NYC Guardian Under Mental Hygiene Law Article 81
Margaret’s father, James, is 94 years old and resides in New York City. Last year, James suffered a stroke, and since then, he has had trouble feeding, clothing, and toileting himself. In addition, his memory has deteriorated since his stroke, causing him to forget to pay his bills. He is also no longer able to completely understand and manage his finances. Margaret worries that James is no longer able to take care of his own personal or financial needs. Margaret wants to to become a Guardian of the Person and Property of James under Mental Hygiene Law Article 81. She has seen some guardianship guides. What else should she know before petitioning to be appointed as Guardian?
- Who can Petition to be Appointed Guardian under Article 81?
Generally, a person with an interest in the welfare of another individual can petition for the appointment of a Guardian. Section 81.06 of the Mental Hygiene Law provides a list of individuals who may petition for the appointment of a guardian, including, but not limited to:
- Alleged Incapacitated Person,
- Person who resides with the alleged incapacitated person.
- Person concerned with welfare of alleged incapacitated person.
- Presumptive distributee (the person(s) who would be entitled to inherit from the Alleged Incapacitated Person if the Alleged Incapacitated Person were deceased, as defined by Subdivision 42 of Section 103 of the Surrogate’s Court Procedure Act),
- The executor of an estate of which the Alleged Incapacitated Person is or may be a beneficiary.
Where the Alleged Incapacitated Person is unable to provide for his own personal needs, a Guardian of the Person should be appointed. Where the Alleged Incapacitated Person is unable to manage his finances, a Guardian of the Property should be appointed. Where the Alleged Incapacitated Person needs assistance with both, a Guardian of the Person and Property should be appointed. Multiple Guardians may be appointed, and the Guardian of the Person can be different from the Guardian of the Property. In addition, individuals and financial institutions can both act as Guardian of the Property.
Margaret can petition to be appointed as Guardian of the Person and Property of her father, as she is a presumptive distributee. She can also request the appointment of a different Guardian if she feels unable to act as her father’s Guardian.
- What is the main function of an Article 81 Guardian?
Guardianship serves the purpose of providing the “least restrictive form of intervention” to individuals with incapacities. Guardians assist such individuals with their personal and/or financial needs while allowing those individuals to retain their independence.
- The Person has Petitioned to Become a Guardian, and the Court has Appointed the Person as Guardian of the Person and Property. What are the Guardian’s Powers?
The duties and powers of a Guardian of the Property and those of a Guardian of the Person differ. The powers of a Guardian of the Property are set forth in MHL §81.21, while the powers of the Guardian of the Person are set forth in MHL §81.22.
Among others, the Guardian of the Person generally has the following powers:
- The power to make gifts;
- The power to enter into contracts;
- The power to authorize access to or release of confidential records;
- The power to marshall assets;
- The power to pay the incapacitated person’s bills;
- The power to retain an accountant;
- The power to create revocable or irrevocable trusts of property of the estate which extend beyond the incapacity or life of the incapacitated person;
- The power to apply for government and private benefits.
Among others, the Guardian of the Property generally has the following powers:
- The power to determine who will provide personal care to the incapacitated person;
- The power to determine whether the incapacitated person should travel;
- The power to authorize access to or release of confidential records;
- The power to make decisions regarding the incapacitated person’s education;
- The power to apply for government and private benefits;
- The power to choose where the incapacitated person resides.
While these are the general powers of Guardians, the actual powers of an appointed guardian are provided in the Order appointing the Guardian, so the individual petitioning to become Guardian should make sure to request in the petition all of the duties and powers that he or she wishes to be granted by the court. Once the Order is issued, the Guardian should make sure to review the Order thoroughly. Should the appointed Guardian need additional powers in the future, he or she can make a motion to the court for additional powers.
- What are the Guardian’s Duties?
Once Margaret is appointed, she must attend a guardianship training class.
If the court orders her to do so, she should secure a surety bond.
She should then sign the oath and designation in the presence of a notary and obtain two certified copies of the commission.
One of the most important things that a Guardian can and must do is maintain records of every transaction and activity she performs in her role as Guardian, as she will have to report her transactions as Guardian on an annual basis.
The Guardian has to file several types of reports while acting as Guardian. First, she must file the 90-day report, in which the Guardian reports on whether he has taken guardianship training courses and secured a bond; provides a list of steps taken to further the personal care of the incapacitated person, if the guardian is a guardian of the person; and provide a plan of care for property management, if the guardian is a guardian of the property.
As mentioned above, the Guardian must also provide annual accountings in which she reports on all transactions conducted in her role as Guardian.
Finally, the Guardian must file her final report and petition for discharge upon the death of the Incapacitated Person or other termination of the guardianship. With the final report, the Guardian renders a final accounting, provides a proposed order to settle the account, and states the reason for discharge (for example, the death of the Incapacitated Person). If the Incapacitated Person is deceased, the Guardian should render a Statement of Death.
We have significant guardianship experience and can assist you with obtaining guardianship over a loved one and perform your post guardianship duties.
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