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When to Consider a Guardianship Proceeding

You are concerned about a loved one or a friend when it appears that the responsibilities of daily life are getting beyond their ability to manage them. Those personal responsibilities may center on personal needs decisions, such as an inability to manage medication or maintain a home. Sometimes the concern is the management of property. For example, a person may not be keeping current with bills to the point that utility companies are threatening to shut off services, or a landlord has brought an eviction proceeding because the rent has not been paid, yet there are substantial financial resources to pay all of the outstanding bills. Alternatively, you perceive that the person may be the subject of elder abuse, personal or financial. Sadly, sometimes these actions are carried out by family members of the vulnerable person. In these circumstances, the State of New York has created a lifeline called a guardianship proceeding, provided by Article 81 of the Mental Hygiene Law, known as the MHL.

This article will discuss when it may be appropriate to consider bringing an Article 81 proceeding to protect your loved one or friend, the requirements for the filing and proof of such a petition, and what to expect during the hearing.

To establish the need to appoint a guardian to make personal needs decisions for another person, or to manage their property, it must be established by admissible evidence that the person is incapacitated. In brief, Article 81 of the MHL states that a finding of incapacity is permitted if the facts establish that the “alleged incapacitated person”, known as the “AIP”, has limitations of functional ability, and a lack of appreciation of those limitations to such an extent that harm will be suffered without the provision of assistance.

You’ve already reached the point where you believe that a person requires some level of assistance, but you are still unsure how to proceed. One should always first consider whether the individual has taken steps which would eliminate the need for the filing of an Article 81 petition. That is, does the person have what are called “advanced directives”? Such documents include a durable power of attorney, health care proxy, and living will. These documents are called advanced directives because they are designed to address a person’s needs in advance of the onset of an inability to make those decisions or manage property themselves. Let’s discuss what each of these documents are in a little more detail.

Durable Power of Attorney

A durable power of attorney can be used to appoint an agent or agents, to manage your financial affairs. For example, the agent would be able to have their names placed on your bank and investment accounts. This would allow them to pay your bills and make decisions about investments. The list of potential responsibilities, besides banking and investment concerns, include: management of real property; estate matters; insurance; operation of a business; litigation; government benefits; retirement benefits; and tax matters.

If you signed a durable power of attorney you would be called the principal and the person or persons you appoint would be known as your agent(s). The person(s) you appoint are said to be fiduciaries, that is they are required to act in your best interests at all times. Under certain circumstances agents are required to provide an accounting of the management of the principal’s financial affairs.

There are different types of powers of attorney, but a durable power of attorney is the only one which survives the onset of a person’s incapacity. Provided you maintain your legal capacity to do so, you may revoke the power at any time.

 Health Care Proxy

A health care proxy designates an agent to make health care decisions in the event you are unable to do so by reason of a medical condition. Through this document you can appoint an agent, and an alternate agent who could act if the primary agent is no longer available or cannot be reached. We all maintain total individual control over our medical treatment decisions in the first instance. However, if it is determined that you cannot express your wishes in terms of medical treatment decisions, a health care provider can consult with a duly appointed proxy so as to enable the seamless provision of care. The agent is required to express your known wishes in carrying out his or her duties and also must act in your best interests.

Living Will

A health care proxy does not express an individual’s personal wishes for end of life medical care and treatment. Such preferences are included in a living will. Again, you alone direct your medical care, however, if you lack the capacity to express your wishes, even for end of life treatment, your proxy can advocate for you. Your proxy must act consistent with your known wishes, which can be detailed in a living will. For example, if your medical condition declines to certain prescribed circumstances, you can direct in advance if you want, or choose to decline, CPR or mechanical ventilation.

How to evaluate whether the circumstances trigger a medical care provider’s review of your advanced directives will be left for another article. However, the important point to take away from this discussion is that by signing a health care proxy and a living will, you can avoid the delay and expenses associated with appointing a guardian for making medical care and treatment decisions.

Now that you know what these documents are and what they accomplish, you need to determine whether the person about whom you are concerned has signed these advanced directives. How should you do that? If you believe that your vulnerable friend or relative requires assistance, speak with that person as he or she may still be able to direct you to the paperwork. Alternatively, speak with that person’s family members and ask if advanced directives have been prepared. Lastly, if you discover that the person has retained the services of an attorney previously, it would be appropriate to consult with the attorney to express your concerns and to inquire whether advanced directives have been prepared.

If you have concluded that a person you know is still managing their personal needs and financial affairs but is doing so through great effort due to the onset or progression of a mental or physical condition, before you do one thing further for them, it is imperative that you recommend that an attorney be consulted to discuss the preparation of advanced directives. Having those documents in place may avoid the investment of time and money to have an Article 81 guardian appointed. An attorney would assess that person’s capacity to understand the advanced directives.

You’ve now undertaken a search for these documents and nothing is found. The person you believe to be incapacitated has an assortment of unpaid bills and does not know where to start, or he or she lives alone in a two-story house and their medical condition causes you to be concerned whether they can safely manage the stairs, or whether proper medications are being taken, or whether healthy meals are being prepared. You may have the opinion that a safer living environment should be considered, such as an assisted living facility. These are only a couple of examples of circumstances that can generate concern. The potential circumstances where consideration of a guardianship proceeding are warranted are almost infinite.

Consultation with a practitioner in the field of guardianship law should be the next consideration. What advice should you expect? You will be advised that an Article 81 guardianship proceeding is an “expedited proceeding”. In other words, the concerns raised by such a petition are so acutely important to the personal and property affairs of an individual that a court hearing needs to be conducted in a short period of time, usually about four weeks from the issuance of an Order to Show Cause.

An attorney will then prepare a petition which is required to detail the AIP’s inability to function, and a proposed Order to Show Cause will be submitted to a Justice of the Supreme Court in the County where the proceeding is brought. Perhaps the circumstances suggest that you should be the petitioner. However, consultation with counsel regarding individuals involved in the life of the AIP may lead to the suggestion of another person as the petitioner. Also, the attorney should make appropriate inquiries to determine who should be the nominated guardian and what personal needs and property management powers should be sought.

If the assigned Justice believes that the circumstances alleged in the petition support the appointment of a guardian, the Order to Show Cause will be signed and sent to your attorney to accomplish service of the documents on the AIP and notice to persons required by Article 81 of the Mental Hygiene Law. The person for whom you initiated the proceeding has due process rights which must be observed throughout the case. The Order to Show Cause and the supporting petition must be personally delivered to the AIP to provide him or her with an opportunity to understand the nature of the allegations and the relief sought, that is, the appointment of a guardian.

The Order to Show Cause will set a hearing date and appoint a Court Evaluator to undertake an investigation of the allegations of the petition which includes speaking with individuals having knowledge of the claims being made and inquiring into the AIP’s assets, income, and other resources. The investigation will include a consultation with the AIP to assess the claims of incapacity and to obtain his or her position on the matter of whether a guardian should be appointed. Prior to the hearing the Court Evaluator will prepare a report and submit it to the Court making a recommendation as to whether a guardian should be appointed and if so what powers should be granted. The focus of the Court Evaluator’s investigation should be the AIP’s functional capacity, and without prior Court authorization or the consent of the AIP medical records may not be accessed.

The AIP has the right to contest the petition for the appointment of a guardian, the right to counsel to advocate their position, the right to offer evidence on their behalf, and the right to a jury trial. To enable the AIP to protect these rights the Court often appoints an attorney in the Order to Show Cause to represent the AIP. If such an attorney is appointed, or later retained, the Court Evaluator may not speak with the AIP in the absence of that attorney.

On the day of the hearing, the burden of proving the allegations is upon the petitioner. If the AIP can meaningfully participate, he or she should be present. As the appointment of a guardian may significantly restrict an AIP’s right to directly handle their affairs, the judge’s personal evaluation of the AIP in the context of petitioner’s allegations is of paramount importance. If at all possible, the AIP must be heard on the matter of whether a guardian should be appointed, and if so who that guardian should be.

Although the AIP has the right to a trial by jury, the hearing is often held before the Court who makes the decision as to whether a guardian should be appointed. Again, because time is of the essence in addressing the personal and financial affairs of the AIP, that decision is usually made by the judge at the conclusion of the hearing, later followed by the signing of an Order and Judgment setting forth any appointment and the parameters of the personal and property powers granted.

The proposed guardian(s) should be prepared to testify and explain to the Court why they are suited to make personal needs decisions for the AIP and to manage their property. They must be free of any disqualifying acts in their personal and/or financial history. If the proposed guardian is appointed, the Court will likely impose the condition of obtaining a bond, essentially an insurance policy, meant to financially protect the AIP in an amount calculated in relation to the assets and income which will be managed.

If the Court determines that the appointment of an MHL Article 81 guardian is warranted, the AIP may then be referred to as the IP, the incapacitated person. Alternatively, the Court may determine that although the AIP is not incapacitated, he or she may be a “person in need of a guardian”, and therefore a PING. Whether an IP or a PING, they become the ward of the guardian who will be required to undergo a training program.

If a guardian is appointed his or her powers and obligations will be set forth in detail in the Order and Judgment. Those obligations include the requirement that the guardian visit his or her ward periodically, and file initial and annual reports detailing the status of the ward’s personal and financial circumstances and the guardian’s actions in relation to them.

This article recites a very broad overview of the circumstances which may lead to the consideration of a guardianship proceeding, what to expect if a petition is filed, and how to potentially avoid the need for a guardianship. Please look for later articles and blog posts discussing various other issues relating to MHL Article 81 guardianship proceedings.