This article explains Article 81 proceedings to appoint a guardian of the person and property when a family member is incapacitated.

Family members can petition for guardianship of a family member who is incapacitated and unable to manage his/her property or financial affairs. Article 81 of New York’s Mental Hygiene Law gives courts the authority to appoint a guardian who will manage personal and or financial affairs for an Alleged Incapacitated Person (AIP), also known as a Person in Need of a Guardian (PING).

The court grants a guardian the ability to make certain decisions on behalf of the AIP. However, not all guardians have the same powers, and the court generally tries to limit and tailor the powers granted to guardians to those which are “least restrictive” and “specifically necessary” to meet the needs of the AIP.

Article 81 guardianship petitions must show clear and convincing evidence that guardianship is necessary. This includes evidence that the AIP cannot manage her property or cannot provide for her personal needs. A court evaluator will meet with the incapacitated individual, investigate and report on the facts and circumstances of the case. The evaluator will often include their opinion on whether or not a guardian should be appointed and, if so, what powers the guardian should have.

A petitioner will have the opportunity to present the court with evidence that the incapacitated person needs guardianship. Individuals in opposition to the guardianship petition will also have the opportunity to present their arguments and evidence. A second party can contest a guardianship by filing a cross-petition.

Contested guardianship cases sometimes include disputes over incapacity, or whether the advance directives should be set aside. It can also involve an AIP or third person who is opposed to the appointment of a guardian or a specific guardian.

The powers of a guardian fall under a property management or personal needs category. Some guardians have powers that fall under one of these categories, but most have powers that fall under both. Property management can include, among other things, the authority to pay bills, enter into contracts, create trusts, and to engage in Medicaid and tax planning. Personal needs may include the authority to prevent self-neglect, to stop physical abuse, to determine the type of medical treatment an AIP should receive, and to make decisions about where the person should live and what kind of social activities the person should engage in.

People petitioning for guardianship can pick and choose which powers they want to request. Guardians have many responsibilities under Article 81 of the Mental Hygiene Law. A guardian must visit the AIP at least four times per year and send reports to the court. The first report is due 90 days after the court appoints the guardian. Subsequent reports are due every May. Guardians must make all choices and decisions with the AIP’s best interests in mind.

If you are interested in petitioning for guardianship, or wish to contest a guardianship, please contact Raimond & Staines, LLC. Out of office consultations are available.

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