Bringing suit against a person for whom a guardian has been appointed isn’t for the faint of heart.
A person seeking to litigate against a guardian in its representative capacity, or a judicially declared incapacitated person (“IP”), cannot proceed without permission from the court which appointed the guardian.
Continue Reading How Easy Is It to Sue an Incapacitated Person?
I recently filed an Order to Show Cause in Kings County (Brooklyn) with a Petition commencing a guardianship proceeding pursuant to Article 81 of the Mental Hygiene Law.
I used the same form and format as I have in the past, which had never been rejected (until now).
On this particular occasion, the Clerk asked me to refile the Order to Show Cause with the service of process language matching the Sample Form provided by the court.
The language in the Sample Form reads:Continue Reading Kings County Requires the Order to Show Cause Service Provisions Match the Sample Form
Not just anyone (or anything) can serve as a guardian for an adult in New York. Mental Hygiene Law Article 81, one of New York’s adult guardianship statutes, has specific eligibility requirements.
There are four categories of persons (and entities) that are eligible to serve as an article 81 guardian in New York – lay guardians, independent guardians, corporate guardians (both not-for-profit and for-profit), and public agency guardians.Continue Reading Who (and What) Can Serve as an Article 81 Guardian?
The Coalition to Assist Limited Capacity New Yorkers will sponsor a four part webinar series beginning with a panel of article 81 guardianship judges in New York City who will discuss the impact of COVID-19 on their courts.
“The judges will share their knowledge on how their parts and the practice within the courts have been impacted by the pandemic, best practices that have emerged in light of our new socially-distanced reality, and their hopes and recommendations for the future,” according to the Coalition, a joint project of Project Guardianship and NYLAG’s LegalHealth Program.
The panel of judges include Justice Lisa Sokoloff from New York County, Justice Ta-Tanisha James from the Integrated Guardianship/Housing Part in New York County, Justice Lisa Ottley from Kings County, Justice Charles Troia from Richmond County, and Justice Wyatt Gibbons from Queens County.Continue Reading Panel of NYC Judges to Discuss Impact of COVID-19 on Guardianship Parts
The Queens County Guardianship Office does not receive an alert when practitioners file papers via NYSCEF in Mental Hygiene Law Article 81 cases. Documents uploaded to NYSCEF in Article 81 matters should also be emailed to the Queens County Guardianship Office so that they receive the papers. Please email me at djr@djrattorney.com for the correct
The New York County Clerk’s office now requires that all Stipulations and Consents to E-Filing in Mental Hygiene Law Article 81 guardianship cases must be So Ordered before being filed with the Clerk.
Many practitioners, including myself, are electing to convert their Article 81 paper cases to NYSCEF. In New York County, before filing a
The Court Evaluator is not only a critical player in an article 81 guardianship proceeding, its role is unique to all other court proceedings.
The Court Evaluator is frequently described as the “eyes and ears of the court”. Their job, in essence, is that of an investigator, tasked with gathering detailed information about the case to assist the Court in reaching its decision as to whether a guardian should be appointed.
The Court Evaluator is not a party to a Mental Hygiene Law (MHL) article 81 adult guardianship proceeding, and is impartial in its outcome, except to the extent that the Court Evaluator asserts its own independent position. Instead, “a court evaluator is a neutral appointee entrusted with duties and responsibilities as set forth by statute, to assist the court in determining whether a guardian should be appointed, or whether there are less restrictive measures that can be employed to protect the subject of the proceeding.” Continue Reading Role of the Court Evaluator
Adult guardianship proceedings reveal to complete strangers some of the most intimate and personal details of a person’s life. “Guardianship proceedings are unique and different from most other forms of litigation since the respondent, the individual haled into court against their will because she or he is alleged to be ‘incapacitated’, is not accused of wrongdoing or fault,” wrote Justice Gary F. Knobel in Matter of Amelia G.
The rules governing public access to Mental Hygiene Law article 81 cases in New York are often inconsistent, fact-specific, and vary between counties. This not only applies to the sealing of court records, but to public access in general. This may be for the best, given the competing interests of an alleged incapacitated person’s (AIP) right to privacy and the public right to access court records. But it leaves the adult guardianship practitioner with limited guidance.Continue Reading Public Access to Adult Guardianship Cases: A World of Inconsistency
Court evaluators are not parties to a Mental Hygiene Law article 81 guardianship proceeding, and it matters.
Court evaluators, known as the “eyes and ears” of the court, are essential actors in a guardianship proceeding, but they are not a party to the proceeding. Parties to the proceeding include the petitioner and the alleged incapacitated person (AIP).
This matters not only in a theoretical sense, but in a practical sense.Continue Reading Court Evaluators Are Not Parties And It Matters
If a petition to appoint a guardian is dismissed in a Mental Hygiene Law (MHL) Article 81 proceeding, the statute on its face permits the court to direct the petitioner to pay the fees of the Court Evaluator and Court-Appointed Counsel to the Alleged Incapacitated Person (AIP). The statute says nothing about the petitioner’s motives. It sets forth no requirement that there be an absence of bad faith before authorizing the court to require petitioner to pay.
However, case law carves out a safe harbor for petitioners. Where a petition is dismissed or withdrawn, a finding of bad faith is required before the court is authorized to direct the petitioner to pay compensation to the Court Evaluator or Court-Appointed Counsel for the AIP.Continue Reading Article 81 Provides Fee Shifting Safe Harbor for Petitioners Acting in Good Faith