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.
Required Contents of the Petition
The petition’s requirements are governed by MHL § 81.08. The statute sets forth what must be included in the petition. The required contents in the petition are literally listed in paragraphs (1)-(15) in the statute. Anytime I draft a petition, I use MHL § 81.08 as a checklist to ensure all statutory requirements are met.
The petition must include the name, age, address, and telephone number of:
- the proposed guardian;
- the alleged incapacitated person (“AIP”). The AIP is the person for whom the “petitioner” is asking that a guardian be appointed. The petitioner is the person who brings the proceeding and asks the court to appoint a guardian;
- the person(s) with whom the AIP resides, if any; and
- any persons that the petitioner intends to serve with the “order to show cause” and the nature of their relationship to the AIP. The order to show cause is a document that the court signs ordering a hearing, giving the AIP notice of the guardianship proceeding and informing their rights, instructing how and when the petitioner should deliver legal papers on the parties, appoints a court evaluator and sometimes, appoints an attorney for the AIP, among other things. The technical term for delivering legal papers is “service”. Legal papers are often hand delivered, but can also be mailed, faxed, emailed, etc.
The petitioner’s name, address, and telephone number must also be included in the petition, along with the names, addresses, and telephone numbers of the AIPs “presumptive distributees”, unless the presumptive distributees are unknown and cannot be ascertained by the petitioner with reasonably diligent efforts. To put it simply, a presumptive distributee is anyone who would inherit from the AIP’s estate if the AIP died without making a will.
Sometimes the petition proposes that a “standby guardian” be appointed. A standby guardian is someone who the court appoints to act as guardian in the event that the appointed guardian resigns, dies, becomes incapacitated, or is removed, discharged, or suspended. If the petitioner proposes a standby guardian, they must include the proposed standby guardian’s name, address, and telephone number, the relationship of the standby guardian to the AIP, and the reasons why the petitioner believes the proposed standby guardian is suitable to exercise the powers necessary to assist the AIP.
The petition must set forth a description of the AIP’s functional level including their ability to manage the activities of daily living, behavior, and understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living.
Perhaps the most important content requirement are specific factual allegations. Petitioners asking for a guardian of the personal needs must include specific factual allegations “as to the personal actions or other actual occurrences” involving the the AIP, which the petitioner claims demonstrate that the AIP “is likely to suffer harm because he or she cannot adequately understand and appreciate the nature and consequences of his or her inability to provide for personal needs”.
When “powers are sought with respect to property management” for the AIP, the petitioner must include “specific factual allegations as to the financial transactions or other actual occurrences” involving the the AIP, which the petitioner claims demonstrate that the AIP “is likely to suffer harm because he or she cannot adequately understand and appreciate the nature and consequences of his or her inability to provide for property management”.
If the petitioner is seeking the power to transfer any part of the AIP’s property or assets to or for the benefit of another person, including the petitioner or guardian, the petition must include a whole host of additional information.
A description must also be made of “the particular powers being sought and their relationship to the functional level and needs of the person alleged to be incapacitated”, meaning, the petitioner must describe the AIP’s issues and the powers the guardian will need to attend to these issues. The petitioner will also need to provide a proposed “duration of the powers being sought”. In other words, the court wants to know how long the guardian will need these powers to help the incapacitated person.
Guardianship is a last resort. If there is an alternative to guardianship that is less restrictive, it must be considered. After all, guardianship equates to a loss of civil rights. Therefore, Article 81 requires that the petition include a description of the available resources to the AIP, if any, that have been considered by the petitioner as an alternative to guardianship and the petitioner’s opinion as to their sufficiency and reliability. For example, if a power of attorney or health care proxy are in place, guardianship may not be necessary.
Finally, the petitioner should include in the petition any other information which they believe will assist the court evaluator in completing their investigation and report.
The petitioner must describe the approximate value and description of the AIP’s financial resources and whether, to the best of the petitioner’s knowledge, the AIP is a recipient of public assistance, such as Medicaid and SSI. Moreover, the nature and amount of any claim, debt, or obligations of the AIP, if the petitioner knows of any, should be included.
A “provisional remedy” is defined as “any temporary order of a court to protect a party from irreparable damage while a lawsuit or petition is pending.”
In an Article 81 guardianship proceeding provisional remedies include the appointment of a temporary guardian, a temporary restraining order, or an injunction.
MHL § 81.08 requires that the petition be verified under oath. The petitioner must swear or affirm under the penalties of perjury that they are telling the truth.
If this is the first time the petitioner is requesting the appointment of a guardian for the AIP, the petition should include some form of the following statement: “No previous application has been made for the relief requested herein.”
This statement is required because New York’s Civil Practice Law and Rules Rule (“CPLR”) 2217(b) requires that an ex parte motion be accompanied by an affidavit stating the result of any prior motion for similar relief and specifying the new facts, if any, that were not previously shown. An Article 81 petition would be part of an ex parte motion because, to put it simply, it is being filed with the court first, and the other parties are notified later.
Drafting the Petition
As mentioned above, anytime I draft a petition, I use MHL § 81.08 as a checklist, to ensure all statutory requirements are met. The required contents in the petition are listed in paragraphs (1)-(15) in that statute.
However, courts allow a certain degree of leeway when drafting petitions. I routinely see petitions that don’t include all of the statutory requirements, but the court issues an order to show cause and holds a hearing anyway.
Still, filing a petition that omits all statutory requirements is ill-advised. For example, In Matter of K.B. (D.B.), the Supreme Court of Dutchess County dismissed a petition where it ”failed to provide the type of detailed information contemplated by MHL §81.08.” The Court reasoned that the petition did not set forth any meaningful facts pertaining to the AIP’s functional level and that the only information contained in the petition was the opinion of the petitioner.
When drafting a petition in an Article 81 proceeding, I always use the statute as a checklist, and include as much detailed information as possible so that I know the document will pass muster, meet the statutory requirements, and result in the court issuing the order to show cause.