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Thursday, December 8, 2011

Article 81 Guardianship from the first step. Part 1

I find that many attorneys take certain things for granted when it comes to the process of establishing legal guardianship over someone.  They do this because guardianship is their day to day life. It is easy to forget that a client walking in the door generally has no idea what guardianship actually means, how the process works or what would be expected of them if they are appointed guardian of their loved one.

Over the next few weeks I am going to be posting a series of entries that explains the Article 81 process from step one.  

Part 1.       What is Article 81 Guardianship?
Part 2.       The Papers
Part 3.       The Cast of Characters
Part 4.       The Hearing (or maybe a Trial)
Part 5.       You are now a Guardian.  What next?

So today's entry will deal with what it means to seek Guardianship through Article 81 and when Article 81 Guardianship is an appropriate vehicle.

PART 1.  What is Article 81 Guardianship?

Guardianship under Article 81 of New York's Mental Hygiene Law allows a court to appoint a guardian to manage the personal and/or property needs of a person who is unable to provide for their own needs AND cannot adequately understand/appreciate the consequences of their inability to do so.

Since the appointment of a guardian takes the ability to make decisions away from the incapacitated party it should only be considered as a last resort.  If a person has already executed a health care proxy and/or a power of attorney, a guardianship proceeding may not be necessary.  Advance directives such as a health care proxy and/or power or attorney are a less restrictive means of meeting the same goal.  However, if a person no longer has the capacity to execute advance directives a guardianship proceeding may be the only available option.

Ex:  A family member has suffered a traumatic brain injury.  They are no longer able to communicate their needs, or desires.  They do not have the ability to manage their own health care - meaning they cannot make arrangements for therapeutic services, rehab services, follow up medical appointments, etc.  They are no longer able to manage their own financial affairs - payment of medical expenses, rent, application for government benefits if qualified, etc.  If this person has previously executed a durable power of attorney appointing someone to be their agent for financial matters and a health care proxy appointing someone to make medical decisions on their behalf then an Article 81 guardianship MAY not be necessary. I stress MAY because that power of attorney and health care proxy would need to be evaluated to make sure that they are duly executed and practical.  A power of attorney or health care proxy that names someone who lives across the country as agent; or who is now estranged from the incapacitated person; or who has predeceased the incapacitated person might not be suitable. 

Guardianship orders are not one size fits all solutions.  Each is specifically drafted so that the powers granted to the guardian are specifically necessary to meet the needs of the person who is incapacitated.

As previously indicated, guardianship under article 81 is granted in cases where a person is unable to provide for their own needs AND cannot adequately understand/appreciate the consequences of their inability to do so.  Simply being eccentric is not sufficient reason to bring a guardianship proceeding.

In my next entry I will discuss the legal papers that must be filed in order to start an Article 81 Guardianship.  The Petition and Order to Show Cause are the first chance that a petitioner has to convince the court that a guardian is required, and as a result special attention should be paid to the narrative that they present.

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