When an adult loved one is disabled or becomes incapacitated, family members surely will want to ensure that his or her best interests are represented.
Article 81 Guardianships, established by Article 81 of the New York State Mental Hygiene Law, deal with appointing a third party to handle personal and/or property decisions for a disabled or incapacitated adult who does not have appropriate advance directives in place (i.e., health care proxy and/or power of attorney). The majority of these relate to aging relatives suffering from dementia or disabled children who have reached the age of majority. Occasionally it will also be necessary for a person who has suffered a debilitating illness or injury without having advance directives in place.
Article 81 Guardianship proceedings are commenced in Supreme Court, in the county in which the incapacitated person resides. The pleadings filed set forth the disability of the alleged incapacitated person, as well as their assets, income and liabilities, health insurance provider information, prognosis and requested powers.
The beauty of the Article 81 Guardianships is that they are extremely flexible and can be tailored to meet each person’s specific needs. The powers granted to the guardian are only those necessary to meet the individualized needs of the incapacitated person, while allowing them as much independence and privacy as possible. As a person’s disability improves or worsens, the guardian’s powers can be decreased or increased as appropriate.
Unlike a power of attorney or health care proxy, the guardian is subject to court oversight, including the requirement that the guardian file annual reports which are reviewed by an accounts examiner for that county.
Article 81 Guardianships are expedited proceedings, and are required to be heard within approximately 28 days from the date the initiating papers are reviewed by the court. The assigned judge will also appoint a court evaluator who is charged with speaking with all parties involved and providing a report and general overview to the court of the circumstances of a particular case. The court will use this report to inform its decision.
The party applying for appointment of the guardian can request that a particular person be appointed, or request that the court appoint a neutral third party as guardian, who will ordinarily be an attorney. The guardian, once appointed, can then begin handling the affairs and decisions they are charged with.
While no family hopes to find itself in this position, Article 81 proceedings can assist them in providing assistance and necessary services to a family member in need. Tully Rinckey attorneys can provide assistance and advice about Article 81 Guardianships should you require it.
Jennifer J. Corcoran, Esq. is a Partner at Tully Rinckey PLLC in Albany, N.Y. She focuses her practice on trusts and estates, elder law, family/matrimonial law and residential real estate.
