Ideally, we would like to always have the mental and physical ability to make our own financial and health related decisions. In the event that we can not, an estate planning attorney can assist by preparing advance directives such as health care proxies, living wills, and powers of attorney, so that we can appoint trusted agents to make decisions on our behalf. But what happens if a loved one needs no longer has the ability to make their own decisions and has not prepared in advance? An Article 81 guardianship is a means by which assistance can be provided to adults with special needs or limited capacity. Despite its usefulness, it is not always the most appropriate tool and an experienced guardianship lawyer will be able to advise you about whether or not an adult guardianship under Article 81 of the NYS Mental Hygiene Law is appropriate for you or your family member.
Adult guardianships are used to provide assistance to incapacitated adults that are unable to care for themselves or to manage their financial affairs. It might be an elderly parent suffering from dementia or a sibling, spouse or child who suffered a traumatic brain injury, but whenever an adult requires the help of another individual, the court may be petitioned to have another competent adult assist them in their areas of need.
Article 81 Guardianships were designed by New York State to be extremely flexible in their nature. Because courts do not like to strip adults of their autonomy, adult guardianships are limited in nature and the powers given to the guardian are limited only to those necessary to meet the needs of the incapacitated person in question. Some adults with limited capacity may need assistance with medical decisions while others may only need help managing their property or financial affairs. In order to afford individuals the most autonomy possible, an order appointing guardian will be tailored by the judge to the individual. If the incapacitated person is capable of making decisions about where they wish to live and the type of medical treatment they wish to receive, but they are not capable of managing their property and financial affairs in a reasonable or prudent manner, the court will appoint a guardian simply to manage the property of the incapacitated person.
Anyone over the age of 18 may serve as guardian but so can a corporation or public agency. The incapacitated person him or herself may bring a guardianship petition to have a guardian appointed on their own behalf, but so may any other person who is concerned with the welfare of the incapacitated person. This may include the CEO or Administrator of the nursing home or care facility in which the incapacitated person resides.
Once a Guardianship Petition is filed and service is made upon all the interested parties, a hearing will be held, at which the presence of the allegedly incapacitated person is required unless it can be demonstrated that they would be incapable of meaningful participation. In order for the court to appoint a Guardian, it must be found at the hearing that the allegedly incapacitated person either consents to a guardian, or that they meet the legal definition of incapacity. The incapacity must be proven by “clear and convincing evidence” and will generally be determined based on a report made by the court evaluator (a neutral party who acts as the eyes and ears of the court and makes an examination of the allegedly incapacitated person, his caretakers, doctors and friends and family members). To make a finding of incapacity the court must determine that a person is likely to suffer harm because of their inability to care for their personal needs and property damage because they do not understand that they have the inability to do so.
Whether you believe a friend or family member meets the definition of incapacity and would benefit from the appointment of a guardian, or you are an individual whom others claim is incapacitated and in need of a guardian, an experienced elder law attorney will be able to help you meet your goals.
