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
The New York County Clerk’s Office is now, for the most part, closed on Wednesdays. But not necessarily for guardianship attorneys. I recently attempted (successfully) to have my court runner file an interim motion in an Article 81 proceeding in New York County on a Wednesday. It can be done!
Per the New York County Clerk’s website: “All NYCC in-person transactions are postponed on Wednesdays until further notice except in the case of an emergency which is defined herein as: Guardianship and Mental Hygiene emergency applications. . . .” This means you can file your application for an appointment of a guardian on a Wednesday. But leave your dog bite pleadings at home.
Moreover, I learned that the New York County Clerk at 60 Centre Street is open on Wednesdays to accept Orders to Show Cause in existing guardianship matters in Room 160 (Chief Cashier) next to Room 158 (Guardianship & Fiduciary Support Office), but not Room 141B (the Cashier which issues index numbers).
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:
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.”
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