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?

Simply put, case law and custom are fairly consistent in defining this power as a Court’s grant of authority to the guardian to determine who can and cannot visit the incapacitated person, or “IP”.

In Matter of V.W., the Bronx County Supreme Court specifically defined visitation as part of the guardian’s power to make decisions regarding social environment and other social aspects of the life of the incapacitated person. (20 Misc 3d 1106[A], 1106A, 2008 NY Slip Op 51250[U], *1 (Sup. Ct, Bronx Co. 2008)).

In that case, Justice Alexander W. Hunter denied the IP’s husband’s request to direct the guardian to permit him to visit the IP. The Court held that “it is within the guardian’s duties to make decisions regarding the social environment and other social aspects of Ms. W.’s [the IP’s] life.”

About seven years after rendering its decision in Matter of V.W., the Bronx County Supreme Court  once again defined visitation as part of the guardian’s power to make decisions regarding the social environment and other social aspects of the life of the incapacitated person.

In it’s decision in Matter of Caryl S.S. (Valerie L.S.), the Bronx County Supreme Court granted the temporary guardian the power “to make decisions regarding the social environment and other social aspects of the life of the incapacitated person” and wrote  immediately thereafter: “In this regard, the Visitation Order dated December 9, 2014…shall remain in full force and effect.” (47 Misc 3d 1201[A], 1201A, 2015 NY Slip Op 50356[U], *14 (Sup Ct. Bronx Co. 2015)).

In determining who the guardian can and cannot prohibit from visiting the IP, and the conditions of visitation, the Court must consider  the IP’s preferences, and cannot substitute its own judgment for that of the IP’s. However, the Court is not required to follow the IP’s wishes where it makes a proper determination about incapacity. 

For example, in Matter of S.B. (E.K.), the Chemung County Supreme Court appointed Care Manage For All, LLC, a nonprofit organization, as guardian of the Person of  E.K., with the power to “[m]ake decisions regarding social environment and other social aspects of the life of Elizabeth J. Kotula, including but not limited to the authority and responsibility to coordinate E. K.’s visitation and communication with E. I.” E.I. was one of two of the the alleged incapacitated person’s (“AIP”) daughters. 

In a lengthy and detailed decision and order, Justice David H. Guy concluded that the AIP had “consistently expressed a desire to reside in the home of E. I.” and had “also consistently expressed a desire to visit and speak with S. B.” S.B. was the AIP’s second daughter. However,  “E. I. has frustrated and prevented at every possible juncture” the AIP’s desire to visit and speak with S.B. 

“E. I. has used her access to her mother as a weapon against her sister, putting her personal animus for her sister above the needs, desires, and wishes of E. K. It is not reasonable for E. K.’s desire to reside with E. I. — in an environment where E. I. isolates E. K. as a response to E. I.’s own relationship with her sister — to override E. K.’s desire to have a relationship, contact, and in-person visitation with S. B.”, the Court wrote, after finding that E. K. lacked the ability to independently address her desired visitation with S. B.

Accordingly, the Court granted the personal needs guardian the power to make decisions regarding social environment and other social aspects of the life of the AIP, including the authority and responsibility to coordinate the AIP’s visitation and communication with her daughter.

Where a Court improperly bans visitation, the case is ripe for appeal.

In re Solomon T.R., the Appellate Division, Second Department, which is one of four of New York State’s intermediate appellate courts, three nonparties to the article 81 proceeding to appoint a guardian for the person and property of Solomon T. R., were restrained “from visiting or harassing the alleged incapacitated person to the extent of (1) directing them to refrain from harassing the alleged incapacitated person, and (2) imposing certain restrictions on their visits with the alleged incapacitated person”.

But the Appellate Division reversed the lower court’s decision, reasoning that there was insufficient evidence to establish that the appellants engaged in harassment, and that their rights to visit should not be restricted, and that the restrictions in place under these circumstances were a violation of the AIP’s rights. 

The  [lower] court granted the petitioners the power, inter alia, to “make decisions regarding [the] social environment and other social aspects of the life of the incapacitated person” (Mental Hygiene Law § 81.22 [a] [2]). However, Mental Hygiene Law § 81.20 (a) (7) directs that: “a guardian who is given authority  relating to the personal needs of the incapacitated person shall afford the incapacitated person the greatest amount of independence and self-determination with respect to personal needs in light of that person’s functional level, understanding and appreciation of that person’s functional limitations, and personal  wishes, preferences and desires with regard to managing the activities of daily living.”

The petitioners failed to  establish that the appellants harassed the alleged incapacitated person (cf. Penal Law §§ 240.25, 240.26, 240.30, 240.31). In this regard, the petitioners did not specify what acts, if any, allegedly committed by the appellants constituted harassment or when the appellants purportedly engaged in such acts. Moreover, under the circumstances of this case, the petitioners did not demonstrate that the appellants’ visits with the alleged incapacitated person should be restricted.

Accordingly, the court should have denied the petitioners’ motion in its entirety

In addition, the power of the guardian to make decisions regarding social environment and other social aspects of the life of the IP, as with any power granted to the guardian, must be custom tailored to fit the specific needs of the incapacitated person based on the Court’s findings after reviewing all admissible evidence.

In Matter of Jesse Lee H. v Cheryl Joy H., the Appellate Division, Second Department held that although the IP’s mother, who had been appointed his guardian, had been given the “power to make decisions regarding the general environment and other social aspects of the life of” the IP, the trial court was fully authorized to condition this power. 

Specifically, in that case, the power was conditioned in that the IP’s father was permitted to have unsupervised visitation with the IP subject to certain exceptions.

The power granted to court-appointed guardians in New York under Article 81.22(a)(2) to “make decisions regarding social environment and other social aspects of the life of the incapacitated person” are a powerful tool to protect an incapacitated person from nefarious visitors. Although Courts can effectively outsource discretion to the guardian in how to wield that power, Courts can also limit it and place restrictions. But in every case, the Court must be careful not substitute its own judgment for that of the IP, or allow a bar on visitation without sufficient evidence to support such a finding.