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Tuesday, December 27, 2011

Article 81 Guardianship from the first step. Part 2

In my last installment of this series of articles, I gave a very broad overview of what an Article 81 Guardianship is.  Today I am going to attempt to give a brief summary of the papers that you need to file in order to start the Article 81 Guardianship process.

PART 2.  The Papers

An Article 81 guardianship is a special proceeding typically brought in the Supreme Court of the county where the Allegedly Incapacitated Person (AIP) resides.  In certain cases the proceeding may be filed in other counties, such as a county where an AIP has property or where they have been found (which typically means hospitalized). 

The Petition

Once you have determined what the proper county is, you need to start work on your papers.  The opening shot in most guardianship proceedings is called the Petition.   Section 81.08 of the New York State Mental Hygiene Law provides the blueprint for what must be contained in your Petition.  This is where you identify the Alleged Incapacitated Person, give a description of their circumstances, their understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living.  This is where you paint your picture regarding the circumstances of the allegedly incapacitated person.  It is important to provide sufficient detail to show why a guardianship must be established.  Keep in mind that the establishment of a guardianship is a serious matter.  In essence the alleged incapacitated person's right to self determination is being taken away.  That is why the burden of proof in these matters is on the person filing the petition to demonstrate with clear and convincing evidence that a guardianship is warranted.  

In addition, you must be able to provide the court with the names of the distributees of the alleged incapacitated person. This means the family members who would take from the estate of the AIP if they were to pass away.  Other people that may need to be notified of your intention to establish a guardianship are the administrator of any hospital or nursing facility where the AIP resides; the appropriate department of social services if the AIP is receiving MEDICAID benefits; and other parties which will differ in each case. 

The petition is also where you list the specific powers that you wish the court to grant the guardian.  Section 81.21 provides some boilerplate language regarding powers for property management while Section 81.22 provides boilerplate for powers regarding guardianship of the person.  These are not comprehensive, nor does every power apply in every case. 

This brings me to an important point, which is the necessity of experienced counsel in an Article 81 matter.  Every year many people represent themselves as petitioners in Article 81 guardianship matters and many of them do excellent jobs.  Not only in the courtroom, but also in the months and years following as guardians for their loved ones.  However, guardianship is the intersection of many different areas of law and an error made through omission or inexperience at the beginning can come back as a major issue down the line.  The failure to include language regarding the establishment of trusts, transfer of assets, payment of Medicaid liens and other issues at the outset can create great expense later.  This is why I always encourage the involvement of an experienced guardianship attorney from the very beginning of these matters.  Local bar associations are good places for you to make inquires about lawyers in your area who handle this type of work. 

The Order to Show Cause

In addition to filing a Petition with the court (a process which I won't even begin to describe here since the physical steps differ from county to county), you must also provide an Order to Show Cause.  This is a document which restates many of the allegations you have made in your petition.  In addition, it includes language that informs the AIP of their right to be represented by counsel (that's right, the AIP has the right to have an attorney.  They can select their own, or in some cases the court may appoint counsel for them.  This will be covered in greater detail in Part 3.  The Characters).  The guardianship clerk's office at your local Supreme Court's would be able to provide you with sample forms.  Section 81.07 of the Mental Hygiene Law provides the blueprint for the Order to Show Cause. 

Once you submit the Petition and Order to Show Cause the Judge who will be hearing your matter will write in the name and address of the Court Evaluator (again more detail about the Court Evaluator will be provided in Part 3) for your case in the space you have provided on the Order to Show Cause.  In addition, Judge will write in the Order to Show Cause the date, time and place of the hearing.  When you receive the signed Order to Show Cause back from the Court it becomes your responsibility as the petitioner to properly serve the correct papers on the people who you identified in the petition.  The requirements for service of the papers on the appropriate parties will be spelled out in the Order to Show Cause. 

Once you have properly served all parties your next step is to begin prepping for the hearing and working with the Court Evaluator so he/she can complete their report for the Judge.  This and more will be covered in the coming weeks. 

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1 comment:

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