Elder law attorneys may specialize in estate planning, incapacity planning, and end-of-life care for seniors.…
When considering how to manage the property and/or well-being of a person under a disability, the need to be appointed a guardian for that person often becomes part of the conversation.
In New York State there are three types of guardianship proceedings whereby a guardian can be appointed. The three guardianship proceedings are as follows:
- Surrogate’s Court Procedure Act (SCPA) Article 17 – Guardianship of a Minor Child
- SCPA Article 17-A – Guardianship of an Adult with Developmental and/or Intellectual Disabilities
- Mental Hygiene Law Article 81 – Guardianship of an Incapacitated Adult
Although each type of guardianship proceeding is authorized by its own law, all three allow for the appointment of a guardian of the person only, a guardian of the property only, or the guardian of the person and property.
Since they are all authorized and guided by separate laws, the process by which a guardian is appointed in each of the types of guardianships will be different.
This blog post will focus on how to become a Guardian for an Incapacitated Adult in an MHL Article 81 guardianship proceeding.
MHL Article 81 Guardianship Proceeding
An MHL Article 81 guardianship proceeding is typically commenced on behalf of adults who are unable to care for themselves and generally involve an incapacitated person who was once able to manage his/her own affairs but lost the capacity to do so later in adulthood. The loss of capacity could be because of a chronic illness like Alzheimer’s Disease, or a traumatic event like a stroke.
The person who is the subject of the guardianship proceeding is called an “Alleged Incapacitated Person”, or AIP for short. The proceeding can be commenced by the AIP or an interested party as described under section 81.06 of the New York Mental Hygiene Law. The person who is commencing the proceeding is known as the Petitioner.
To commence a proceeding to appoint an Article 81 guardian for the personal needs and/or property management of the AIP, the Petitioner must prepare a number of legal documents with the court, such as a Petition to Appoint a Guardian, a proposed Order to Show Cause, a Request for Judicial Intervention, and a Notice of Proceeding. Once the documents are prepared and executed accordingly, the Petitioner must file these documents with the Supreme Court of the county in which the AIP resides or is physically present.
Order to Show Cause
The court will then issue the Order to Show Cause, which name the appointed a Court Evaluator, possibly an attorney for the AIP, set the service requirements, and schedule a hearing date for the guardianship proceeding. The Petitioner must then serve the court appointees, the AIP, and the interested parties with the Order to Show Cause and/or Petition according to the terms set out in the Order to Show Cause.
The Court Evaluator will then need to conduct a thorough investigation of the facts and circumstances of the case, which includes meeting with the AIP, interviewing the Petitioner and other interested parties, and reviewing the AIP’s financial and possibly medical records. The Court Evaluator will then issue a written report for the court and testify at the hearing.
At the hearing, the Petitioner and any nominated guardians or standby guardians will need to testify. The Petitioner has the burden of proving that the guardianship is necessary and that the person is incapacitated, and should have witnesses who can testify as to any observations they may have made that can speak to the AIP’s lack of capacity.
The AIP, or through counsel, can cross examine the Petitioner, any nominated guardian, or witnesses that testify, and can either testify himself/herself, or call his/her own witnesses. At the end of the hearing, the judge will render a decision on the record.
If the Petitioner is successful in the proceeding, she will then need to submit a proposed Order and Judgement along with the transcript from the hearing to the court and provide a notice of settlement to the interest parties. Once the Order and Judgment is issued by the court the Petitioner will then need to sign a Consent and a Designation form, and file it along with a copy of the Order and Judgment with the County Clerk’s office. If the court is appointing a guardian for the Property Management of the AIP, then a bond may need to be issued and approved by the court and then filed with the County Clerk’s office as well.
Once the County Clerk issues the Commission the Guardian will have qualified to serve and can begin acting as Guardian pursuant to powers and directives listed in the Order and Judgment.