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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

If you’ve been appointed a guardian or conservator in a state other than New York, but are seeking to exercise your powers as guardian in New York State, you’ll need to register various papers in New York first (unless you petition anew). Otherwise, you won’t have the legal authority to exercise your powers as guardian in the Empire State. 

I’m a big fan of checklists. This step-by-step guide makes the process easier.…

Continue Reading How to Register an Out-of-State Guardianship in New York

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).…

Continue Reading New York County Clerk Now Closed on Wednesdays With Exceptions for Guardianship Cases

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

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