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.” 

Continue Reading Role of the Court Evaluator

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

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

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

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.

Continue Reading Article 81 Provides Fee Shifting Safe Harbor for Petitioners Acting in Good Faith

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.

Continue Reading Discharging the Guardian: A Step-by-Step Overview

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.

Continue Reading PING Designation Does Not Mean Less Power for the Guardian