What Are the Implications of Article 81 in Guardianship Proceedings?
Article 81 of New York’s Mental Hygiene Law authorizes a Court to appoint a Guardian to manage the personal needs and/or financial affairs of a person who cannot manage these matters for himself or herself because of incapacity.
Incapacity can be caused by an illness or accident. Generally, Article 81 sets forth the procedures to apply to the Court for the appointment of a Guardian, the factors that a Court will consider in deciding to appoint a Guardian and the powers that can be given to a Guardian to assist the incapacitated person. Article 81 also has provisions covering Guardianship implementation and accounting.
There are two main aspects regarding a person that can be the subject of a Guardianship proceeding. The Court may appoint a Guardian for Personal Needs. The Court can also appoint a Guardian for Property Management.
A Personal Needs Guardian will be responsible for handling aspects of an incapacitated person's life that concern personal care and welfare. These powers include the right to make decisions regarding things such as where the incapacitated person will live, providing authorization regarding medical or dental treatment, whether an incapacitated person should be allowed to drive or travel and allowing access to or a release of confidential records.
A Guardian that is appointed for Property Management obtains the authority to make decisions regarding another's assets and financial affairs. These powers include the right to control an incapacitated person's bank and brokerage accounts and real estate. The Guardian can also apply for various benefits on the person's behalf such as social security or medicaid. The Guardian can utilize a person's funds to pay bills and expenses that are necessary, including the rent on a person's apartment or a mortgage on a home.
Article 81 Guardianship can be contested, with interested parties disputing the need for a Guardian or who should be appointed as a Guardian or the powers the Guardian is to receive. The alleged incapacitated person himself or herself has the right to, and many times does, oppose these proceedings.
A Guardianship may be needed when a person is taken advantage of by others. There are many cases where close relatives or friends or caretakers attempt to wrongfully influence an incapacitated person to gain control over their assets. This is known as undue influence. In these situations a Court can appoint a Temporary Guardian and can immediately restrain or freeze an incapacitated person's bank accounts or other assets to preserve them until the Court can have a full hearing.
I have represented many clients in Article 81 Guardianship court cases throughout New York including Manhattan Guardianship Courts and Bronx Guardianship Courts. I have also been appointed by the Court as a Court Evaluator. A Court Evaluator is a person who reviews the facts in a Guardianship case and provides the Court with a report and recommendations.
I work closely with my clients in these proceedings to promote their interests while advancing the interests and protections of the person alleged to be incapacitated. Call me now if you have a Guardianship question.
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.
If you are interested in speaking with me about Article 81 Guardianships, please call (212) 355-2575 or e-mail
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