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.
Pursuant Mental Hygiene Law (“MHL”) Article 81.22(a)(9), the court can give the guardian the authority to:
choose the place of abode; the choice of abode must be consistent with the findings under section 81.15 of this article, the existence of and availability of family, friends and social services in the community, the care, comfort and maintenance, and where appropriate, rehabilitation of the incapacitated person, the needs of those with whom the incapacitated person resides; placement of the incapacitated person in a nursing home or residential care facility as those terms are defined in section two thousand eight hundred one of the public health law, or other similar facility shall not be authorized without the consent of the incapacitated person so long as it is reasonable under the circumstances to maintain the incapacitated person in the community, preferably in the home of the incapacitated person.
The Common Types of Powers
Courts occasionally allow guardians to choose the place of abode without coming back to court after the initial Article 81 hearing. But most judges require prior court approval before the guardian can move their ward to a different residential setting.
Here are the three most common types of place of abode provisions in Orders and Judgments appointing guardians (they are not exclusive):
- The guardian has the power to “choose the place of abode”;
- The guardian has the power to “choose the place of abode, subject to prior court approval”; and
- The guardian has the power to “choose the place of abode, provided, however, that placement in excess of ninety (90) days in a more restrictive environment shall be subject to prior court approval”.
The first version of the power is simple and straightforward-the guardian has full authority to “choose the place of abode” of their ward. There is no need to go back to court for permission to transfer the Incapacitated Person (“IP”) to a new home in the community, a nursing home, or an assisted living facility.
The second version places a restriction on the guardian. Before changing the IP’s place of abode, the guardian needs permission from the court before they can transfer their ward to a new home, whether it be in the community or an institutional setting. I describe the interim motion process in more detail below.
The third version gives the guardian some flexibility. The guardian can change the place of abode now, but must make a motion for permanent placement within 90 days of the move if the ward is moved into a more restrictive environment, such as a nursing home from an apartment in the community. In other words, a guardian can move their ward from House A to House B without prior court approval. The guardian can also move their ward from House A to Nursing Home A prior to receiving court authorization, but court permission must be sought if the move to a nursing home is to exceed 90 days. The key is that permission can be sought after the move.
The reasoning behind the third version of the power is that a person subject to guardianship may need rehabilitation or treatment in a nursing home following a hospitalization, but the stay is intended to be temporary, and it’s often expected that the IP will come back home.
Note, a guardian can never be given the power to consent to the admission of their ward to a mental hygiene facility (at least not in their capacity as guardian). Pursuant MHL Art. 81.22(b)(1): “No guardian may … consent to the voluntary formal or informal admission of the incapacitated person to a mental hygiene facility under article nine or fifteen of this chapter or to a chemical dependence facility under article twenty-two of this chapter.” The voluntary or involuntary admission of a person to a mental hygiene facility in New York is generally covered by a separate statute and requires its own separate proceeding.
If the Order and Judgment requires prior court approval, the guardian (or their attorney) will need to make a motion. In New York City, this is usually accomplished by filing an order to show cause supported by an affidavit from the guardian, but it’s prudent to review the local rules and judge’s part rules prior to drafting the motion to ensure compliance with a specific court or judge’s local procedural rules. Some judges require the motion to be made on “on notice” instead of by order to show cause.
The order to show cause should be supported by at least one affidavit from the guardian. The affidavit should include, at a minimum, the following information:
- Case background and history;
- Discuss where the ward currently lives and why the move is necessary;
- How the move will benefit the ward;
- If the ward agrees to the move, emphasize this;
- If the ward is moving home, details about the discharge and why its safe. For example, how will home care be paid for?;
- List any parties that are entitled to notice of further proceedings in the Order and Judgment; and
- Any other relevant information specific to your case.
The affidavit should be designed to persuade the court as to why your application to change the place of abode should be granted. If you are asking the court to move your ward from home to a nursing home, convincing the judge may take extra effort due to the restrictive nature of institutional residential settings.
In many circumstances, including one or more supporting affidavits is prudent. If there is a care manager, social worker, or other professional involved in the IP’s case, they too should make an affidavit in support of the application to change the place of abode. The circumstances are different in each case, but any professional in support of your application willing to make an affidavit should be utilized. Persuasion is the key.
After you submit your application, the court will issue the order to show cause, and will set a return date. Often there is an evidentiary hearing and the guardian will need to be prepared to testify and even present witnesses. Some judges are much more informal and do not require a full hearing.
Ultimately, the judge will issue an order either approving the application in full or in part, or denying the application in full or in part.
Again, each county and each judge have unique procedures, practices, and styles. There is no secret to success. The key is to persuade the judge that changing the IP’s place of abode is in the IP’s best interest.