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 Where a petition is dismissed or withdrawn, a finding of bad faith is required before the court  is authorized to direct the petitioner to pay compensation to the Court Evaluator or Court-Appointed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