Appointment

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In a New York Mental Hygiene Law Article 81 guardianship proceeding, courts strongly prefer appointing family members as guardian of the incapacitated person. However, there are exceptions.

When  family members fight to be appointed guardian, are acrimonious, or can’t get along, courts often hesitate to appoint any family member as guardian, even if otherwise qualified.

This article explores how judges decide who to appoint as guardian when the incapacitated person’s family can’t get along. Continue Reading Family fighting makes it hard, but not impossible, to be appointed guardian

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. Continue Reading Drafting Article 81 Petitions: The Checklist Approach

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.

Comment (page entered on) 2 - ORDER TO SHOW CAUSE ( PROPOSED ) The service requirements for the parties entitled to service should conform to the sample OSC which can be found at nycourts.gov/kingscivil under the Guardianship department tab. There should also be service written in for the proposed temporary guardian. (ReturnRemoveDocument (AddComment)

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 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