NYC Mental Hygiene Law Article 81 authorizes a Court to appoint a guardian to manage the personal needs or property of a person who cannot manage on their own because of incapacity. Not all Article 81 guardians in New York have the same powers. In fact, there are three main types of Article 81 Guardians – temporary guardians, special guardian, and permanent guardians. This post will explain the differences and help you figure out which guardianship you should request for your matter.
A temporary guardian is typically appointed either at the commencement of the guardianship proceeding or at some point during the proceeding because there is an urgent need for an individual to take action to protect the rights or property of the alleged incapacitated person (AIP). A temporary guardian is appointed pursuant to the provisions of MHL 81.23. In order to request the appointment of a temporary guardian, the petitioner must demonstrate to the Court that the AIP is in imminent danger, typically because the AIP’s funds have been stolen, or the AIP is being exploited by a caregiver, friend, family member or acquaintance, or the AIP requires urgent medical care but is unable to independently make the necessary decisions.
The temporary guardian’s powers are specifically set forth in the Order appointing the temporary guardian. When appointed, the temporary guardian can take immediate action to the extent authorized to do so in the Order. For example, if the AIP’s funds are being stolen or have been stolen, the temporary guardian can immediately institute a turnover proceeding. If the AIP is being exploited, the temporary guardian can take possession of all of the AIP’s assets in an effort to protect the AIP. If the AIP needs to make personal care decisions, the temporary guardian can make those decisions. If you are drafting a proposed order to appoint a temporary guardian, consider reviewing MHL 81.21 and 81.22 to see what powers should be requested and added to the order. (Practice point – make sure you note that the Certified Copy of the Order Appointing Temporary Guardian shall serve as their Commission so that the Guardian does not have to lose any time getting appointed).
The temporary guardian continues to serve until the earlier of (i) being discharged by the court; or (ii) until the guardianship matter is concluded and an Order and Judgment is signed by the Judge. A temporary guardian is appointed pursuant to the provisions of MHL 81.23. The temporary guardian’s role.
A Special Guardian is appointed at the conclusion of the guardianship hearing to perform a very limited role or transactions. Indeed, a special guardian may be appointed to facilitate a transaction or series of transactions necessary to achieve any security, service, or care arrangement meeting the foreseeable needs of the incapacitated person. The special guardian may be appointed to direct, or ratify any contract, trust, or other transaction relating to the incapacitated person’s property and financial affairs. A special guardian is appointed pursuant to the provisions of MHL 81.16. The Order appointing the special guardian will set forth the role and duties of the guardian. Some examples of when a special guardian may be more appropriate than a permanent guardian are:
- An AIP is in a facility but needs somebody to apply for government benefits or engage in medicaid planning for the purpose of creating eligibility for government benefits.
- An AIP’s disability is that he is a minor and a special guardian is necessary to collect the AIP’s inheritance (because proper estate planning was not performed)
- The special guardian needs to collect property and dispose of it.
- A special guardian is necessary to create a proper discharge plan so that the AIP can go from a skilled facility back to their home
The special guardian serve until being discharged by the Court. After the special guardian has performed the transaction, they have to move to be discharged by the Court.
Permanent Guardian of the Person and/or Property
A permanent guardian may be appointed to protect the personal needs or property management of an AIP. The permanent guardian’s powers are typically set forth in the Order Appointing the Guardian after the hearing. The powers of the guardian are those set forth in MHL 81.21 and MHL 81.22. The permanent guardian typically serves for an indefinite period of time (usually until the incapacitated person dies) and is charged with managing all of the AIP’s affairs.
We can assist you with identifying which type of guardianship would best suit your needs, as well as assist you in applying for guardianship, and engaging in the legal work required of guardians following their appointment.
For more information, please contact probate and estate planning attorney Regina Kiperman:
Or visit her at her new location:
80 Maiden Lane
New York, NY 10038
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