New York Guardianship Proceeding Commencement

New York Guardianship Proceeding Commencement

A Guardianship Proceeding in New York must be commenced in accordance with the provisions contained in Article 81 of the Mental Hygiene Law ("MHL"). The fundamental document that must be prepared is the Guardianship Petition. Section 81.08 provides the details as to the information to be contained in the petition.

The statute states that the petition must be verified. This means that the person asking the Court to have a Guardian appointed must sign the petition and also assert as to the accuracy of the information in the petition and this assertion must be notarized. Among the basic information that is to be set forth in the petition is the age, address, name and telephone number of the alleged incapacitated person ("AIP").

The location or address of the AIP is important since the Court will use this information to determine where the Guardianship case is to be filed. Section 81.05 of the MHL states that the proceeding is to be filed in the county where the AIP "resides, or is physically present". Interestingly, the statues makes clear that if the AIP is being cared for in a facility, his residence is considered to be the county where the facility is located.

One of the most essential requirements of a petition is to describe the AIP's functional level and his ability to care for his activities of daily living. Typically, the petition will describe the particular circumstances relating to the AIP's incapacity. For example, the petition may describe in detail facts relating to the AIP's illness and the limitations that have resulted in the AIP's abilities such as lack of mobility, psychological impairments and the inability to attend to personal chores or hygiene. Each petition will have a different story to tell about the AIP.

The petition also must list the various powers that the petitioner is seeking regarding the AIP's property management and personal needs. Also, it is necessary to provide the Court with the names and addresses of the AIP's next of kin. There are provisions in Section 81.07 of the MHL that require that a Notice of Guardianship Proceeding be given to an AIP's spouse, parent, children, siblings and other relatives.

There is also a need to include in the petition a description of the assets and income that are available to the AIP as well as his debts and obligations. This information will assist the Court in determining to what extent a Guardian is needed to handle the AIP's property management. This information is also needed by the Court Evaluator so that a review can be commenced regarding the status of the AIP's financial situation.

As a Guardianship lawyer in New York I work closely with clients regarding the preparation and review of a Guardianship Petition. There is an immense amount of information that must be contained in the Court petition and it is important that the Court be presented with the complete picture as to why a Guardianship is needed to protect the interests of a family member or friend.

If you have a question regarding a Long Island Guardianship or a New York City Guardianship, call me for a free discussion. I have been assisting clients in these matters for over 35 years. You can contact me at tel: (212) 355-2575 or email: jules.haas@verizon.net.