I recently received written instructions from the New York County Clerk for filing a Commission. The entire process is in-person.
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.
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:
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.
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.”
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.
There is a common misconception among adult guardianship attorneys, even some of the most experienced, that a PING designation in an Article 81 guardianship proceeding equates to less power for the guardian than an Incapacitated Person (IP) designation.
An PING (an abbreviation for a Person in Need of a Guardian) is an Alleged Incapacitated Person (AIP) who consents to the appointment of a guardian.
The consent of the AIP takes the place of the finding of incapacity. It does not disturb the court’s authority to choose the powers of the guardian.