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Article 81 Guardianship Litigation

By Stephanie L. Goldstein, Esq., Littman Krooks LLP

In light of how they have been portrayed in the media lately, guardianships can be viewed negatively by those who have not been personally involved in the process.

The application process can appear daunting as there is little information provided to the public.  We are here to illuminate the process.

In New York, pursuant to Article 81 of the Mental Hygiene Law, an individual is “incapacitated” if it is proven by clear and convincing evidence, that the individual is likely to suffer harm as the individual is unable to provide for his personal needs and/or property management and the individual is unable to adequately understand and appreciate the nature and consequences of such inability.

The New York legislature enacted Article 81 to tailor the guardianship to meet the individual needs of the person by taking into account the personal wishes, preferences, and desires of the person.  A guardianship is intended to afford the person with the greatest amount of independence.  In other words, a guardianship is intended to be the least restrictive form of intervention.  The court will need to investigate what decisions the individual is either able or unable to make.  An individual who is the subject of a guardianship application is known as an AIP, which is short for Alleged Incapacitated Person.  As certain rights and powers may be taken away from the AIP and given to someone else, the court will take the application very seriously to ensure the AIP and his rights are protected.

If the guardianship is contested, the cross-petitioner will have an opportunity to examine all witnesses.  Once petitioner’s case rests, the cross-petitioner will have an opportunity to testify, call witnesses, and seek to introduce other evidence.

The petitioner and cross-petitioner may also examine the court evaluator during the hearing regarding his investigation, report, and recommendation(s) regarding the application to the court.

If the court determines that the AIP is indeed incapacitated and in need of a guardian but the family dynamic is too complicated and can potentially cause too much stress on the incapacitated person, the court can appoint an independent guardian to avoid and otherwise manage family acrimony.

If the court determines that the AIP is indeed incapacitated and in need of a guardian, the court will determine what specific powers to provide to the guardian that will constitute the least restrictive means.  The court will also appoint a court examiner to review all reports and accountings filed by the guardian.

The guardianship application and hearing process can be complicated.  If the guardianship becomes contested, it is prudent to retain counsel.  The attorneys with Littman Krooks can help prepare and guide you through the guardianship process.  You can reach out to us to schedule a consultation and we can review with you to determine whether a guardianship is the appropriate route.

Article 81 sets forth the guidelines for submitting a petition to a court for a guardian to be appointed.  The petition will need to be filed in the supreme court of the county where the AIP resides.  The petition should forth specific factual allegations of incapacity as opposed to broad conclusory statements, i.e., provide examples.  The petitioner can ask for a guardian to be appointed for the person and/or the property.

The petition is filed by a proposed Order to Show Cause, which the assigned judge will sign to schedule a date for the hearing and to appoint either a court evaluator or an attorney for the AIP (or both).

The court evaluator serves as the “eyes and ears for the court.”  This means the court evaluator is tasked with interviewing the AIP, the petitioner, and all interested parties for the purpose of reporting on this investigation and providing a recommendation.

If someone opposes the guardianship application, a cross-petition must be filed in advance of the hearing date.  Many guardianships are contested as to whether a guardian is even necessary and who should be appointed as the guardian.  Often, family members disagree on who is the appropriate person to serve in that role.

At the hearing, the petitioner will testify and may seek to introduce other forms of evidence to establish that the individual is incapacitated and needs a guardian.  Article 81 focuses on the functional limitations rather than a medical diagnosis.  Testimony regarding how the functional limitations prevents the AIP from managing his daily activities and that the AIP does not appreciate the nature and consequences of his functional limitations will be helpful for the court to determine whether the AIP is incapacitated and in need of a guardian.

If the petitioner nominates another person to serve as a guardian, the petitioner will need to explain to the court why the nominated person is appropriate to serve as guardian.  The petitioner can nominate himself to serve in the role of guardian.

If the AIP has advance directives (e.g., Power of Attorney, Health Care Proxy) in place, the court may dismiss the guardianship petition unless the AIP appointed an agent who is unable/unwilling to serve as an agent, the advance directives were not validly executed, the person serving as agent is not appropriately carrying out the AIP’s wishes or the AIP did not have capacity at the time of the signing of the advance directives.


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