Insight and Analysis on Adult Guardianship Law in New York
Article 81 guardians are often faced with the delicate and controversial task of making decisions about the social life and social environment of the person for whom they serve as guardian.
Pursuant to New York’s Mental Hygiene Law Article 81.22(a)(2), the court can give the guardian the authority to “make decisions regarding social environment and other social aspects of the life of the incapacitated person”.
But what exactly does this mean?
Per an email from Christina Llewellyn, Esq., the Principal Court Attorney to Hon. Aija Tingling, A.J.S.C., dated December 4, 2024:
Continue Reading Hon. Aija Tingling Updates NY Co. Part 25 Rules
In a Mental Hygiene Law Article 81 adult guardianship proceeding, most Courts require motions to settle a guardian’s final report or final account be made by Order to Show Cause. The same can be said for interim motions in adult guardianship proceedings.
In Nassau County Supreme Court, however, motions to settle a final account must be made by notice of motion. This is a “principal exception” to the general rule in Nassau County that most motions in adult guardianship proceedings be made by Order to Show Cause, or “OSC”.
In a New York Mental Hygiene Law Article 81 guardianship proceeding, courts strongly prefer appointing family members as guardian of the incapacitated person. However, there are exceptions.
When family members fight to be appointed guardian, are acrimonious, or can’t get along, courts often hesitate to appoint any family member as guardian, even if otherwise qualified.
This article explores how judges decide who to appoint as guardian when the incapacitated person’s family can’t get along.
Continue Reading Family fighting makes it hard, but not impossible, to be appointed guardian
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.
I recently received written instructions from the New York County Clerk for filing a Commission. The entire process is in-person.
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:
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.
