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.

Continue Reading ‘Choosing the Place of Abode’: The Power to Determine Where an Incapacitated Person Lives

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.” 

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Among the many difficult decisions guardians make for their wards are end-of-life decisions.

Guardians often must make a judgment call about their ward’s life, especially if their incapacitated ward is in a hospital or nursing home. If their ward’s preferences and wishes about end-of-life treatment are unknown, the guardian must act in their ward’s “best interests”.

In New York, assisted suicide is not an option. Period. Not for anyone. Not for guardians. But that doesn’t mean New Yorkers can’t refuse medical treatment and die on their own terms. It also doesn’t mean that guardians can’t refuse medical treatment on behalf of their wards. To refuse life-sustaining treatment, however, guardians will need to have the legal power to do so in the Order & Judgment appointing them guardian.

So when a guardian must start making end-of-life decisions for their ward, what do they do? What’s the first step? How do guardians make sure the decisions they make are ethical, legal, and authorized?

What follows is a system for Mental Hygiene Law article 81 guardians in New York to use when making end-of-life decisions for their ward in a hospital or nursing home setting. Remember, every case is different, with unique facts and circumstances. This guide is for informational and educational purposes only. It is not legal advice, and certainly not medical advice.

Continue Reading End-of-Life Decision Making for Article 81 Guardians