The law operates on the assumption that adult individuals have capacity, meaning that they are capable of making decisions concerning their financial and personal needs and so are best situated to make decisions on their own behalf. Mental incapacity definition is important.
In New York, in the 1990’s, the state revisited its Guardianship statutes; including reviewing the definition of incapacity, instituting procedural safeguards for the alleged incapacitated person, and imposing greater judicial scrutiny of the acts of Guardians. The result has been the creation of a new form of Guardianship, and a greater judicial sensitivity to the need to balance the protection of individuals with diminished capacity against their right to autonomy and self-determination. The appointment of a Guardian is a very serious matter. In a very significant way, the appointment deprives a person of the freedom to make his own decisions regarding healthcare and financial matters. However, it may be very necessary when, due to diminished capacity, a person would suffer harm without assistance.
In determining whether to appoint a Guardian for a person's personal needs or financial management, a Court will examine a person's functional ability and any harm that may result from a person's functional limitations. In situations where a Guardian is needed, the Court will shape the appointment to a person's needs and limit the Guardian's powers so the Guardianship will be as limited as possible. An alleged incapacitated person has the right to oppose the appointment of a Guardian. The Court will appoint an attorney to represent the alleged incapacitated person in Court. The name of the attorney is provided in the Order to Show Cause or in a separate court order.
Article 81 of the Mental Hygiene Law ("MHL") contains dozens of separate provisions concerning a Guardianship case. Section 81.01 of the MHL is entitled "Legislative Findings and purpose". This section is important since it sets forth the purpose of the law as being focused on the needs of each individual person who is subjected to a Guardianship petition. The statute emphasizes that the needs of the person must be examined in each instance and that restrictions on the person's rights will be imposed only as needed. The law seeks to maintain the independence of the incapacitated person as much as possible.
As a New York City Guardianship Lawyer, I have both commenced and defended proceedings on behalf of clients. I have also assisted family members and friends while advancing the interests of individuals who may be in need of assistance due to incapacities resulting from, illness, age or medical conditions.
I have represented many individuals and family members in Guardianship cases. I have been involved in Queens Guardianship cases and Brooklyn Guardianship cases. Also, on numerous occasions I have served as Court Evaluator reporting to the Court concerning the appointment of a Guardian. Call me now if you have a Guardianship question.
For personalized attentive service, please call (212) 355-2575 or visit me at 845 Third Avenue, Suite 1400, New York, NY 10022 (near 52nd Street).