There is a common misconception among adult guardianship attorneys, even some of the most experienced, that a PING designation in an Article 81 guardianship proceeding equates to less power for the guardian than an Incapacitated Person (IP) designation.
An PING (an abbreviation for a Person in Need of a Guardian) is an Alleged Incapacitated Person (AIP) who consents to the appointment of a guardian.
The consent of the AIP takes the place of the finding of incapacity. It does not disturb the court’s authority to choose the powers of the guardian.
Mental Hygiene Law (“MHL”) § 81.02(a) provides that a court may appoint a guardian for an AIP if it determines that the appointment is necessary to provide for the personal needs of the AIP, or to manage the property and financial affairs of the AIP, or both; and either “that the person agrees to the appointment, or that the person is incapacitated”.
MHL § 81.16(c)(1) instructs that “If the person alleged to be incapacitated is found to have agreed to the appointment of a guardian and the court determines that the appointment of a guardian is necessary, the order of the court shall be designed to accomplish the least restrictive form of intervention by appointing a guardian with powers limited to those which the court has found necessary to assist the person in providing for personal needs and/or property management.” (emphasis added).
The language in the immediately following subsection, (c)(2) of MHL § 81.16, which applies to IPs, is identical, except that the language “is found to have agreed to the appointment of a guardian” is substituted with “is found to be incapacitated” and the word “person” is replaced with “incapacitated person”.
The statute does not create a separate standard for PINGs and IPs. The substantive language is the same.
In Matter of Cooper (Joseph G.), the Supreme Court of Bronx County opined:
The statute thus makes it clear that the consent of the AIP makes a finding of incapacity unnecessary. In effect, the consent takes the place of the finding of incapacity. Once there is consent, the Court is free to then appoint a Guardian, with the least restrictive powers as may be necessary to accomplish the purpose of the statute. The finding of consent does not encompass the granting of powers to the AIP, unless there is an explicit understanding that such is the case. There is thus no impediment to the Court accepting the AIP’s consent to the appointment of a Guardian, and then reserving to itself the right to delineate the powers to be given to the Guardian.
The PING who agrees, and can agree, to the appointment of a guardian, makes the determination of incapacity unnecessary. But the court still has discretion to determine the appropriate powers of the guardian based on its findings, which could include the all powers under the sun, even without the PINGs consent to the award of powers it does not agree to.