Daily Living Evaluation
An evaluation of activities of daily living is an evaluation of activities people perform daily including activities such as feeding oneself, bathing, dressing, grooming, work, homemaking, and leisure. A person's ability to perform these activities appropriately and without assistance is a primary consideration in Guardianship cases when deciding whether or not someone is able to handle their financial or health affairs.
Section 81.03 of the New York Mental Hygiene Law ("MHL") provides definitions for "activities of daily living" as well as other important considerations in a Guardianship case such as "functional limitations" and "least restrictive form of intervention". In Section 81.02 of the MHL, the statute provides that in connection with determining whether a person is incapacitated, the Court should consider a person's functional level and limitations and that this determination should include an assessment of a person's ability to manage his activities of daily living.
The MHL establishes a procedure for the appointment of a Guardian. Although a Court may determine that a person is incapacitated, the Court generally will appoint a Guardian with powers that are the least restrictive to assist a person with their needs and allow them to maintain the greatest amount of independence. Activities of daily living evaluation is essential.
A Guardianship proceeding may be initiated in instances where a person, due to illness or accident, is unable to perform activities of daily living and the incapacity results in possible risk to the person's welfare. Sometimes, a Guardianship may be needed when a person who is suffering from a diminished capacity is acting irresponsibly by failing to pay his bills such as rent or mortgage payments or utility bills. This conduct puts the person at risk.
An evaluation of activities of daily living provides a Court with a guideline in making determinations in Guardianship matters.
Guardianship cases involve a presentation of clear and convincing evidence that a person is incapacitated and will suffer harm if a Guardian is not appointed. In many instances the proof regarding incapacity is not clear. For example, a Guardian will not be appointed solely because a person adopts a lifestyle that may seem odd. If a person decides to live in his car or acts immaturely or is unsuccessful in business ventures such conduct will not, by itself, demonstrate the need for a Guardian. As a result, each Guardianship case must be reviewed by the Court very carefully to ascertain the circumstances and need for intervention before an alleged incapacitated person's rights are limited by a Court mandated Guardianship.
A New York Guardianship Attorney needs to be familiar with the provisions of the MHL. Each case has different facts and circumstances. All factors must be analyzed thoroughly so that the presentation of the Guardianship case to the Court will allow the Judge to make a clear determination as to incapacity. A complete presentation of facts also provides a Court with the information needed to provide the Guardianship control and power that will be best suited for the person who is incapacitated.
I have represented many individuals and family members in Guardianship proceedings which have involved an evaluation of activities of daily living. On numerous occasions I have served as Court Evaluator reporting to the Court and providing recommendations concerning the appointment of a Guardian. I work closely and personally with my clients on these matters. If you have a question regarding a Guardianship issue, call me now for a free review.
I graduated in the top 10% of my class at The New England School of Law in Boston and served on the prestigious “Law Review.” I have also served on the staff of a NYC Councilperson and NYS Assemblyman.
You can contact me by phone at (212) 355-2575 or by e-mail