GUARDIANSHIP F0R INCAPACITATED PEOPLE
IN NEW YORK UNDER ARTICLE 81

by Ira Salzman
Goldfarb Abrandt Salzman & Kutzin LLP
A New York law firm concentrating in Elder Law & Guardianships

Article 81 of New York’s Mental Hygiene Law authorizes a court to appoint a guardian to manage the personal and/or financial affairs of a person who cannot manage for himself or herself because of incapacity(1). Not all Article 81 guardians (hereinafter “guardians”) in New York have the same powers. Guardianship orders are specifically tailored so that the powers that are granted to the guardian are those that are specifically necessary to meet the needs of the person who is incapacitated. For example, a person may not be able to pay their bills or manage their money, but may have the ability to make healthcare decisions. In such a case, a court might appoint a guardian with powers that are limited to financial management.

In other cases where incapacity is global, the powers granted by the court could include not only a full panoply of financial management powers, but in addition the power to make healthcare decisions and the power to determine where the incapacitated person should reside (including nursing home placement if the incapacitated person cannot be reasonably maintained at home).

A Guardian Can Be Given The Authority To Pay The Bills For An Incapacitated Person

By far the most common reason that guardianship proceedings are brought is because an incapacitated person cannot pay bills because of mental incapacity. A court-appointed guardian can remedy this situation by obtaining the authority to collect assets, pay bills, make investments or exercise any financial right that the incapacitated person would be able to exercise if that incapacitated person had the capacity to do so.

A Guardian Can Be Given The Power Necessary To Prevent Self-Neglect

Sometimes incapacitated people do not provide themselves with proper medical care. They become incapable of taking care of their basic activities of daily living such as grooming, dressing, bathing, toileting and obtaining food. Sometimes large amounts of debris accumulate in the homes of incapacitated people. A guardian can be given the authority to remedy these kinds of situations. The authority that can be granted by the court includes the authority to put home care in place, the authority to perform a heavy duty cleaning on an apartment and, if necessary, the authority to place the incapacitated person in an appropriate residential care facility.

A Guardianship Court Can Stop Financial Abuse

Occasionally, unscrupulous individuals take advantage of incapacitated people by fraudulently inducing them to give away their money. As part of a guardianship proceeding a court can freeze bank accounts. A court can appoint a temporary guardian during the pendency of a guardianship proceeding to make sure that no one but the court appointee has access to the assets of the incapacitated person. A court can authorize a guardian to commence an expedited proceeding to recover stolen assets.

A Guardian Can Be Given The Authority To Stop Physical Abuse

Sometimes family members or acquaintances will physically abuse an incapacitated person. A guardian can be given the authority to take measures to stop physical abuse. These measures can include injunctions which require the abuser to refrain from certain activity, implementation of a home care plan, residential placement, the granting of an order of protection, or the granting of authority to apply to the family court for an order of protection.

A Guardian Can Be Authorized To Engage In Medicaid Planning

The care of an incapacitated person can be very expensive. Significant amounts of home care or a residential placement can cost many thousands of dollars per month. It is often possible to obtain Medicaid eligibility for home care or residential facility benefits if the assets of an incapacitated person can be transferred or placed into a trust. Under appropriate circumstances, a court can authorize a guardian to take the steps that are necessary to obtain Medicaid eligibility for an incapacitated person.

A Guardian Can Be Authorized To Engage In Tax Planning

For incapacitated people who have significant wealth it may be advantageous for estate tax reasons to give gifts to family members while the incapacitated person is alive. A guardian can be authorized by a court to make gifts in order to reduce estate taxes.

The Process By Which A Guardian Is Appointed

In order for a guardian to be appointed, a person called a petitioner must ask the court to appoint a guardian. Almost anyone can be the petitioner. Once the petition is filed with the court, the court normally appoints what is called a court evaluator. It is the job of the court evaluator to conduct an investigation and provide the court with a report with regard to the facts and circumstances of the case. The court evaluator normally express an opinion as to whether or not the appointment of a guardian is necessary. In some cases the court also appoints a lawyer to represent the incapacitated person. When the petition is filed the court also sets a hearing date and orders that notice of the filing of the petition be given to close family members.

At the hearing it is necessary for the petitioner to present the court with clear and convincing evidence that the incapacitated person is incapable of managing certain aspects of their personal and/or financial affairs. The court evaluator presents his or her report at the hearing. Anyone who has filed opposition papers will also be given an opportunity to be heard. After the hearing the court will normally render a decision.

Who Can Be Appointed As Guardian?

Normally nominees of the incapacitated person, the petitioner, and family members are given preference when the court determines who should be the guardian. If there is a difference of opinion among family members as to who should serve as guardian, the court will frequently appoint an independent guardian, whose name would be taken from a list maintained by the court.

In addition, in order to serve as guardian, the person who wishes to serve must be able to obtain a bond in an amount set by the court. A bond is an insurance policy which is paid for out of the assets of the incapacitated person which insures the incapacitated person against theft or other malfeasance by the guardian. There is no standard rule about the size of a bond but in many courts the bond is normally equal to the total amount of the assets of the incapacitated person plus two years’ income. If, because of credit reasons, the nominee of the family to serve as guardian cannot obtain a bond, the court may appoint an independent guardian.

If there is no family member or friend who is willing to serve as guardian, then the court will appoint an independent guardian.

The Duties And Responsibilities Of A Guardian

A person who wants to serve as a guardian must take a six-hour course where the duties of the guardian are explained. Some of the more significant duties are listed below.

Within 90 days of appointment as guardian, the guardian must file what is called an initial report. The initial report typically contains a brief summary of the status of the incapacitated person and a list of the assets of the incapacitated person.

By May 31 of each year the guardian must file an annual report with the court which explains in detail all income and disbursements from the previous calendar year.

At the termination of the guardianship the guardian must file a final report which summarizes all of the activities of the guardian for the entire length of the guardianship.

A guardian must visit the incapacitated person at least four times per year.


FOOTNOTES

(1) There is a separate procedure that is used when a minor who does not suffer from a mental or physical incapacity needs a guardian. In addition there is an alternate procedure that can also be used if a person is incapacitated because of mental retardation or developmental disability


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