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Who Decides if a New York Resident is Incapacitated?

Posted on May 5, 2023


If you ask an experienced New York estate planning lawyer, they will tell you that incapacity is governed by New York’s mental hygiene laws. There are two ways that someone may be declared incapacitated.

The first is when an eligible party petitions the court to become your guardian. The second is if the court finds a vulnerable individual in an eviction or foreclosure proceeding because illness or mental health problems have led them to an inability to pay their bills. In this case, the court appoints a limited guardian to protect them. 

Both processes are called Article 81 proceedings.

Who can bring a guardianship action? 

Adult children, close relatives, and spouses may bring such cases. So can anyone who is “concerned with the welfare” of a person who is alleged to be incapacitated. The person who initiates the hearing must send notice to the AIP, their parents, adult siblings, and adult children if they are alive, or at least one living relative, if not. If the AIP lives with another person, they, too, are entitled to receive notice.

Anyone over the age of 18 may serve as a guardian. So may corporations and public agencies.

New York Process for Guardianship Petition

The person who needs a guardian is referred to as the alleged incapacitated person or AIP. When you file your petition for guardianship, you will be called petitioner, and then “guardian”, once you are appointed by the court.

A description must be included in the guardianship petition of the AIP’s ability to function. A judge will then nominate an independent evaluator who will interview and discuss with AIP their health and ability to provide care for themself. An independent evaluator may be an individual from the mental hygiene legal services, an attorney or psychologist, an accountant, a social worker, or a nurse. The judge will choose one of several pre-approved individuals.

Incapacitated resident lawyer on Long Island

The independent evaluator will then file a written report with observations and recommendations. The judge will then hold a hearing. If possible, the AIP will be present. The judge can appoint an attorney for the AIP if the AIP doesn’t want a guardian and would like to fight the petition.

Both the AIP and petitioner can present evidence during the hearing about the AIP’s condition. Sometimes there will be a jury trial to decide the issues raised during the hearing. This is especially true if an AIP doesn’t want a guardian. 

Next, the court will decide whether or not to appoint a guardian. The court will take into account many factors when making its decision. A court will only appoint guardians if it has “clear evidence” that the AIP is incapacitated and is most likely to suffer harm because of their incapacitation.

As the petitioner, you must prove the individual is likely to be incapacitated. It is the court’s responsibility to ensure that guardianship does not affect the AIP’s life more than necessary. This person should have as much autonomy as possible. You would need to submit annual reports to the court as a guardian about AIP’s health and the way you handled AIP money.

Guardianship Petition Process Course of Action
Filing the guardianship petition Act as the petitioner and provide a description of the alleged incapacitated person’s (AIP) ability to function.
Nomination and evaluation by an independent evaluator Conduct an interview and discussion with the AIP to assess their health and ability to provide self-care. Appoint an independent evaluator (e.g., mental hygiene legal services, attorney, psychologist, accountant, social worker, nurse).
Written report and hearing File a written report with observations and recommendations.
Decision on appointing a guardian Consider multiple factors to determine whether the AIP is incapacitated and likely to suffer harm due to their incapacitation.

Criteria for Incapacitation

No specific diagnosis is required, though evidence of a diagnosis can help shore up a case. For example, if a petitioner has evidence that the Alleged Incapacitated Person (AIP) has been diagnosed with Alzheimer’s, then this can help strengthen their case.

Rather, the court is attempting to determine if:

  • A person is likely to suffer harm because they are unable to provide for their personal needs.
  • They’re also likely to suffer harm because they can’t manage their property.
  • The person cannot adequately understand or appreciate the nature and consequences of such inability.

The court must consider a number of factors in these cases, including the person’s ability to manage the activities of daily living and the ways that the AIP has been managing their affairs to date. If an estate plan is in place, then the courts must consider the person’s wishes. 

What happens when someone is declared incapacitated?

Their guardian will take over whatever duties the court awards them. This can include bill payments, making arrangements for medical care, getting assistance with the activities of daily living, purchasing home services such as care providers or housekeepers, and tax planning. 

The guardian will be asked to take a six-hour course on their duties and will be required to visit their ward at least four times a year. They must also file reports with the court. 

If the guardian fails in their duties, they can be charged under New York criminal statutes designed to protect the welfare of vulnerable or disabled people.

Does Guardianship End at Death

When an incapacitated individual passes away, the guardianship established for their care and protection typically terminates. The steps to be taken after the incapacitated person’s death are usually outlined in a court order and judgment related to the guardianship, which are often based on the Mental Hygiene Law (MHL).

One of these steps, as stated in MHL 81.44 titled “Proceedings upon the death of an incapacitated person,” requires the guardian to notify the court examiner and the personal representative of the estate about the individual’s death within 20 days. Furthermore, the guardian has a period of 150 days to provide a statement of the person’s assets and transfer all guardianship property to the estate’s personal representative.

Additional sections of the MHL also address post-death procedures. For instance, according to MHL 81.21(a)(14), the guardian may cover funeral expenses for the incapacitated person, while MHL 81.21(a)(20) grants the authority to “defend or maintain any judicial action or proceeding until an executor or administrator is appointed.”

In compliance with MHL 81.44, the guardian must prepare and submit a final report or accounting. Taking on a guardianship role carries significant responsibility. The guardian is obligated to maintain detailed records of the incapacitated person’s assets, income, expenses, and overall well-being both before and after their death. After the incapacitated person’s death, the estate representative reviews the guardian’s transactions and determines whether to grant final approval or acceptance of the guardian’s actions. In the event that the estate representative, such as an executor or administrator, suspects misconduct on the part of the guardian, they have the right to voice their concerns regarding the guardianship accounting. Subsequently, the court will review the situation and determine if any adjustments or measures need to be taken.

Can the AIP fight the guardianship action?

Absolutely. If you do not believe you are incapacitated or want a different guardian, reach out to our office. We can help you protect your rights and assets from predatory or untrustworthy guardians.

We can also help you plan in advance to ensure your wishes are taken into account should age, disability, or disease takes away your ability to manage your affairs. Incapacitation can strike when you least expect it. Make sure you’re ready.

How a Skilled New York Estate Planning Lawyer Can Help

Guardianship proceedings can be a complex and emotional process for all parties involved. It is essential to understand the various steps, criteria, and legal implications surrounding guardianship in New York. 

If you or a loved one are facing a potential guardianship situation or wish to proactively plan for the future, it is crucial to have an experienced New York estate planning lawyer by your side. 

At Schlessel Law PLLC, our team of skilled estate planning attorneys may be able to help you navigate the legal system, protect your rights and assets, and ensure that your wishes are respected. Contact us today at (516) 574-9630 to discuss your options and safeguard your future.

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