Guardianship Emergency Applications and Powers

The provisions concerning the appointment of a New York Guardian for the person or property of an incapacitated person are found in Article 81 of the Mental Hygiene Law (MHL). Incapacity as defined in MHL 81.02 “Power to appoint a guardian of the person and/or property; standard for appointment”, requires a finding of clear and convincing evidence that a person will suffer harm because they cannot provide for their own needs and they do not comprehend the consequences of their disability.

A Guardianship case can months to complete. Initially, a petition is filed with the Court along with a proposed Order to Show Cause. After review, the Court will sign the Order to Show Cause which sets the Court date which is usually 3-4 weeks later. The Order also designates the persons appointed by the Judge to assist with the case. These appointees include a Court Evaluator and/or an attorney to represent the Alleged Incapacitated Person (AIP). A Court evaluator reviews all aspects of the case and provides the Court with a report and recommendations. The Court Evaluator will interview the various parties and review relevant documents. Once the initial Court date arrives the case may take time to conclude. Sometimes there are adjournments due to scheduling conflicts or parties may need additional time to prepare for the hearing. The Guardianship hearing is a regular trial. Witnesses are called to testify and other Court procedures are followed. Various documents may be submitted into evidence.

In many cases, circumstances require immediate action by the Court which cannot wait until a full hearing is completed which may be months away. For example, the AIP may have suffered a serious illness or injury that requires immediate medical or personal care choices. In this regard, action may need to be taken expeditiously to obtain private medical insurance benefits or government coverage under Medicaid. Also, in the event of unforeseen events, an individual’s assets may need to be accessed to pay for bills or personal care. Items like mortgage payments, credit card payments, utility bills, or tax bills may be overdue or subject to default. Also, assets may need to be safeguarded.

Fortunately, Article 81 contains a number of provisions by which a Court can provide immediate relief. As a Guardianship Lawyer I have utilized these procedures in many of my Guardianship matters. Here are some of the options:

1. Temporary Guardian: MHL 81.23 entitled “Provisional remedies”, in paragraph (a), allows for the appointment of a “Temporary Guardian.” This appointment can be made at the outset of the case or at any time before the permanent Guardian is appointed. It must be demonstrated that the AIP’s health or well being is in danger or the possible loss, waste or misappropriation of the AIP’s property. The appointment of a Temporary Guardian is very important in some situations. The Court will specifically state the powers and duties of the Guardian. For example, if it appears that a third party is misusing or appropriating the AIP’s assets, the Court can appoint a Temporary Guardian to take charge of the property pending the outcome of the proceedings. Also, the Temporary Guardian can arrange for and authorize needed medical and health care. The statute requires that the appointee provide the Court with a report as to all actions taken.

2. Injunctions and Restraining Orders: MHL 81.23(b) provides for injunctions and restraining orders. There may be situations where due to the AIP’s condition, events may occur that could cause harm to the AIP and his property if not immediately prevented prior to the completion of a full Guardianship hearing. For example, if the AIP has not paid rent on an apartment for many months, there may be impending eviction proceedings. The Guardianship Court can issue an Order that the eviction case be stopped until the Guardianship proceeding is concluded. Many times the eviction matter is transferred to the Guardianship Court for a final determination. In other situations, the AIP may have allowed another person to have access to bank accounts or financial affairs and it seems that the AIP’s funds are being misused or misappropriated.

In these and many other scenarios, the Court can issue an injunction or restraint to prevent certain acts from occurring until a permanent Guardian is appointed who will protect the AIP’s interests. There are many cases where a Court is asked to stop someone from taking advantage of a Power of Attorney or Health Care Proxy. There may be a breach of fiduciary duty by the agent. Financial abuse of the elderly is a common problem. MHL 81.29 allows the Court to revoke a Power of Attorney or Health Care Proxy if the AIP is found to be incapacitated. However, the Guardianship Court may not revoke a Last Will and Testament. Such action must occur in a Will Contest case. Also, the Court may need to provide access to an AIP by family members when visitation is being wrongfully restricted. Generally, the Court has broad discretion to protect the safety and welfare of the AIP pending the conclusion of the Guardianship proceeding. The attorney for the petitioner may also be authorized by the Court to subpoena information concerning the AIP.

I have represented many individuals in Guardianship cases throughout the New York metropolitan area. These matters can be complicated and the Courts will scrutinize whether the person is, indeed, incapacitated and, if so, the Court will determine who is the person best suited to serve as the Guardian. A Guardianship hearing can take many days and involve the presentation of numerous witnesses and documents.

Call me now for a free and confidential review of your Guardianship issue at (212) 355-2575 or e-mail me at jules.haas@verizon.net. We provide reasonable and flexile fee arrangements and personal representation.