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 Coalition to Assist Limited Capacity New Yorkers will sponsor a four part webinar series beginning with a panel of article 81 guardianship judges in New York City who will discuss the impact of COVID-19 on their courts.
“The judges will share their knowledge on how their parts and the practice within the courts have been impacted by the pandemic, best practices that have emerged in light of our new socially-distanced reality, and their hopes and recommendations for the future,” according to the Coalition, a joint project of Project Guardianship and NYLAG’s LegalHealth Program.
The panel of judges include Justice Lisa Sokoloff from New York County, Justice Ta-Tanisha James from the Integrated Guardianship/Housing Part in New York County, Justice Lisa Ottley from Kings County, Justice Charles Troia from Richmond County, and Justice Wyatt Gibbons from Queens County.
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 email@example.com for the correct email address for the Queens County Guardianship Office.
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 Stipulation and Consent to E-Filing, it would be prudent to contact the New York County Guardianship and Fiduciary Support Office to confirm the proper procedure.
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.
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.
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.
If a petition to appoint a guardian is dismissed in a Mental Hygiene Law (MHL) Article 81 proceeding, the statute on its face permits the court to direct the petitioner to pay the fees of the Court Evaluator and Court-Appointed Counsel to the Alleged Incapacitated Person (AIP). The statute says nothing about the petitioner’s motives. It sets forth no requirement that there be an absence of bad faith before authorizing the court to require petitioner to pay.
However, case law carves out a safe harbor for petitioners. Where a petition is dismissed or withdrawn, a finding of bad faith is required before the court is authorized to direct the petitioner to pay compensation to the Court Evaluator or Court-Appointed Counsel for the AIP.
Guardianship doesn’t last forever. The Incapacitated Person (IP) could die, regain capacity, or move out of the country, among other reasons. Sometimes, the guardianship doesn’t end, but the guardian needs to resign. When this happens, the guardian must be discharged by the Court.
At first, the discharge process may seem complicated or confusing. But, like anything, practice makes perfect. Below is a simple, and general, step-by-step overview of the discharge process in a Mental Hygiene Law Article 81 adult guardianship proceeding in New York State.