Do you have an elder loved one in your life who needs assistance with their day-to-day needs? Are you considering petitioning for guardianship so that you can manage important affairs on their behalf? Our experienced elder law attorneys explain what you need to know about the Article 81 guardianship application and why it is necessary to petition when a person’s mental capacity is diminishing.
When Is it Appropriate to Petition for Guardianship?
An Article 81 guardianship application may be appropriate when an adult exhibits a diminished capacity and requires some form of continuous assistance on a regular basis to maintain their daily living needs. The statute refers to the individual for whom the appointment of a guardian is being sought as the "Alleged Incapacitated Person" or "AIP". Section 81.02(b) of MHY states in part that:
"The determination of incapacity shall be based on clear and convincing evidence and shall consist of a determination that a person is likely to suffer harm because (1) the person is unable to provide for personal needs and/or property management; and (2) the person cannot adequately understand and appreciate the nature and consequences of such inability."
The inability to care for oneself may be the result of an illness that affects the person's mental ability, such as Alzheimer's or dementia, or one that results in physical limitations.
How Does the Court Decide if a Guardian Is Necessary?
Under Article 81, guardianship is meant to be the least restrictive form of intervention that can provide personal assistance tailored to the specific needs of an AIP. In other words, the court will grant to the guardian only those powers that are necessary to provide for the incapacitated person's personal and/or property management needs. Furthermore, the powers granted by the court will be determined on a case-by-case basis.
The court takes into account the ability of the individual to understand and appreciate the nature and consequences of their functional limitations and balances that with the goal of preserving the individual's autonomy. In doing so, the court places great emphasis on the individual's independence and self-determination.
The powers that may be granted to a guardian are numerous and there is no exhaustive list. For example, with regard to property management, an appointed guardian may be granted the power to sell real property, set up trusts, enter into contracts, apply for government benefits, and/or pay bills on behalf of the incapacitated individual.
With regard to personal needs, a guardian may be granted the power to determine whether the individual should travel, who should care for the individual, make decisions regarding routine and major medical procedures, and/or choose their place of abode. The guiding principle for the court is that all powers granted to a guardian must be consistent with the functional limitations of the incapacitated individual and the harm that the individual is likely to suffer as a result of their inability to manage their own needs.
Who Can Petition for Guardianship?
Article 81 also offers a broad definition of who may petition the court for appointment as a guardian. If the AIP is or may be the beneficiary of an estate, the executor or administrator of that estate may petition for the appointment.
Similarly, any person who presumably is entitled to take or share in the property of the estate of the AIP may petition the court. The trustee of a trust under which the AIP is a grantor or beneficiary may also commence a proceeding. The person with whom the AIP resides or the chief executive officer of a facility in which the AIP resides may also file a petition.
The statute further provides that any other person otherwise concerned with the welfare of the AIP may make the application. The person seeking to be appointed as a guardian must be over eighteen years of age and the court must find them suitable to assist the AIP with their specific needs.
How to File a Petition for Guardianship?
A petition must be filed in the supreme court of the county in which the AIP resides or is present. After the petition is filed, the court appoints an impartial court evaluator to meet with the AIP.
The court evaluator carries out an investigation, which includes interviewing the petitioner, their friends, and family members and, if the individual resides in a facility, staff members familiar with the AIP's condition.
The court evaluator then prepares a report and provides the court with their recommendation. Thereafter, a hearing is held in the court where the petition was filed to determine whether the petition is granted and if so, the extent of the guardian's powers.
What to Do If You’re Considering Guardianship
Deciding that a loved one needs a guardian can be difficult. And while the process of becoming a guardian may seem daunting, it may be the best decision you can make for your loved one.
At Adler Law, we make it our priority to help clients petition for guardianship so that their loved ones can live a life that mirrors their personal preferences as closely as possible. Our legal team is here to walk you through this process and assist you in ensuring that your loved ones have the best advocate for their needs when they can no longer make those decisions for themselves.
To learn more about petitioning for Article 81 guardianship, please reach out to our lawyers today. Call (516) 740-1184 to request your consultation with a seasoned lawyer at our firm.