Article 81 guardians are often given broad powers over an Incapacitated Person’s life. One of the more challenging decisions many guardians face is deciding where their ward should live. 

Is the current living situation suitable? Should the Incapacitated Person live at home? A nursing home? 

Making the decision itself is just one piece of the puzzle. An article 81 guardian in New York must first consult the Order and Judgment appointing them guardian to ensure they have the power to decide where their ward lives, or in legal parlance, “choose the place of abode”. Guardians often need to go back to court to get a judge’s approval to move their ward to a new living environment.  This procedure is called making an interim motion.

Continue Reading ‘Choosing the Place of Abode’: The Power to Determine Where an Incapacitated Person Lives

The Coalition to Assist Limited Capacity New Yorkers will present a three-part series of webinar panel discussions on navigating the ethical challenges that arise in the practice of Mental Hygiene Article 81 guardianship cases.

The first webinar, which will focus on the petition and hearing, will take place on September 30, 2021 at 5:00pmEST. Continue Reading Webinar to Explore Ethical Considerations in Petitioning for an Article 81 Guardian in New York

If you’ve been appointed a guardian or conservator in a state other than New York, but are seeking to exercise your powers as guardian in New York State, you’ll need to register various papers in New York first (unless you petition anew). Otherwise, you won’t have the legal authority to exercise your powers as guardian in the Empire State. 

I’m a big fan of checklists. This step-by-step guide makes the process easier.

Continue Reading How to Register an Out-of-State Guardianship in New York

Two United States Senators last week called on the heads of two federal agencies to provide data and information on adult guardianship and conservatorships, as the media directs national attention to the controversial conservatorship of pop superstar Britney Spears.

In an open letter to Xavier Becerra, Secretary of the U.S. Department of Health and Human Services, and Merrick Garland, Attorney General of the U.S. Department of Justice, Senators Elizabeth Warren (D-MA) and Robert P. Casey, Jr. (D-PA) gave the Secretary and A.G. until July 14, 2021 to provide information on data systems in place for officials at the agencies to access information regarding:

Continue Reading U.S. Senators Draw Attention to Lack of Guardianship Data as Britney Spears Conservatorship Controversy Gains National Attention

The Coalition to Assist Limited Capacity New Yorkers will host its second webinar event in a four part series on Thursday June 10, 2021 at 5:00pm EST

The webinar event, entitled Article 81 Guardianships in New York: A Statewide Perspective, will explore “the common issues faced by practitioners across New York State” and “the unique local conditions faced within individual jurisdictions,” according to the Coalition,  a joint project of Project Guardianship and NYLAG’s LegalHealth Program.

Project Guardianship will also be hosting a Virtual 5K Run, Walk, or Bike Challenge beginning in June 2021.

When commencing an adult guardianship proceeding in New York pursuant to Article 81 of the Mental Hygiene Law (“MHL”), the key document to be filed with the court is the petition. This document is essentially a detailed, formal, written request to have a guardian appointed. 

In this blog post, I discuss drafting the petition in an MHL Article 81 guardianship proceeding, legal requirements, and best practices. 

Continue Reading Drafting Article 81 Petitions: The Checklist Approach

The New York County Clerk’s Office is now, for the most part, closed on Wednesdays. But not necessarily for guardianship attorneys.  I recently attempted  (successfully) to have my court runner file an interim motion in an Article 81 proceeding in New York County on a Wednesday. It can be done!

Per the New York County Clerk’s website:  “All NYCC in-person transactions are postponed on Wednesdays until further notice except in the case of an emergency which is defined herein as: Guardianship and Mental Hygiene emergency applications.  . . .” This means you can file your application for an appointment of a guardian on a Wednesday. But leave your dog bite pleadings at home.

Moreover, I learned that the New York County Clerk at 60 Centre Street is open on Wednesdays to accept Orders to Show Cause in existing guardianship matters in Room 160 (Chief Cashier) next to Room 158 (Guardianship & Fiduciary Support Office), but not Room 141B (the Cashier which issues index numbers).

Continue Reading New York County Clerk Now Closed on Wednesdays With Exceptions for Guardianship Cases

Bringing suit against a person for whom a guardian has been appointed isn’t for the faint of heart. 

A person seeking to litigate against a guardian in its representative capacity, or a judicially declared incapacitated person (“IP”), cannot proceed without permission from the court which appointed the guardian.  Continue Reading How Easy Is It to Sue an Incapacitated Person?

I recently filed an Order to Show Cause in Kings County (Brooklyn) with a Petition commencing a guardianship proceeding pursuant to Article 81 of the Mental Hygiene Law.

I used the same form and format as I have in the past, which had never been rejected (until now).

On this particular occasion, the Clerk asked me to refile the Order to Show Cause with the service of process language matching the Sample Form provided by the court.

Comment (page entered on) 2 - ORDER TO SHOW CAUSE ( PROPOSED ) The service requirements for the parties entitled to service should conform to the sample OSC which can be found at nycourts.gov/kingscivil under the Guardianship department tab. There should also be service written in for the proposed temporary guardian. (ReturnRemoveDocument (AddComment)

The language in the Sample Form reads:

Continue Reading Kings County Requires the Order to Show Cause Service Provisions Match the Sample Form