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Article 81 Adult Guardianship in New York: The Basics

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Article 81 Adult Guardianship in New York: The Basics

This course will survey adult guardianship proceedings in New York State under Mental Hygiene Law Article 81. Adult guardianship is a unique and exciting area of law, both substantively and procedurally. This course will explore the civil rights component of adult guardianship, the parties to an adult guardianship proceeding, how these proceedings are commenced, appointment of the guardian, the role of the guardian, and discharge. The course will provide a broad understanding of adult guardianship pursuant to MHL Art. 81 for practitioners new to this field of law. The course will also touch upon the basic differences between adult guardianship under MHL Art. 81 and Surrogate’s Court Procedure Act Article 17-A.

Transcript

- [Daniel] Hi, I'm Daniel Reiter and this is Article 81 Adult Guardianship in New York: The Basics. Before we get into the law of adult guardianship in New York and discuss Mental Hygiene Law Article 81, I want to talk about some of the facts and circumstances that would give rise to the need of an adult guardianship proceeding in New York under Mental Hygiene law Article 81. So as I go through some of these facts and circumstances, you'll wanna note that as I will describe later in the lecture, many of these facts are also checking off some of the elements of the need for an adult guardian. So to start, someone is either living in the community or an institution, like a nursing home. They lack capacity in some or all areas of life. In other words, they have functional limitations. And this is a legal term of art. The do not understand the nature and consequences of their functional limitations. So not only do they have a functional limitation, they don't understand the nature and consequences of it. They'll also be in danger, someone will notice, and there generally won't be any alternatives in place, like a power of attorney or a healthcare proxy. So guardianship is a legal arrangement where a court gives a person the legal right to make decisions for another person who can't make those decisions for themselves. So depending on the type of guardianship and depending on over whom the guardianship is requested, all types of guardianship proceedings can be handled in different courts in New York, like the Family Court, Supreme Court, or Surrogate's Court. In adult guardianship proceedings, under Article 81, it's generally the Supreme Court or the county court that will handle these proceedings. But there are obviously different types of guardianships in New York. So for example, in Surrogate's Court, under Article 17 A, there are guardianships over children. Of course, there's also family court guardianships over children. But we are talking about guardianships over adults. And although our focus is gonna be on Article 81 of the Mental Hygiene Law, I do wanna discuss a sibling statute, Surrogate's Court Procedure Act, Article 17 A. And this is a statute that is designed for guardianship for people with intellectual disabilities or developmental disabilities. So we're talking about severe autism or down syndrome, rendering somebody incapacitated to a very extreme degree. So generally the fact pattern in a 17 A can overlap with Article 81, but a typical fact pattern for an Article 17, a guardianship might be a young adult who's 17 with down syndrome, and he's on the cusp of turning 18, and his parents want to continue being and having the same legal powers that they did prior to reaching the age of majority. So they might go to Surrogate's Court and ask to be appointed guardian. Now, they'll need to show that their kid has either an intellectual disability or developmental disability. Medical diagnosis will be prevalent. It's a very different proceeding than Article 81. Now, under Article 81, somebody with down syndrome or autism, somebody with an intellectual or developmental disability can be appointed an Article 81 guardian. But the statute is a bit different. We don't really think about somebody's medical diagnosis, we think about someone's functional limitations, what they can and can't do, what they can understand to do, what they can't understand to do, what they're capable of, generally in a mental sense, not a physical sense, although there are some exceptions to that. So under Article 81, somebody with an intellectual or development disability could be appointed a guardian. But generally, not always, but generally not the fact pattern that arises. The most common fact patterns that arise are some sort of dementia later in life, someone with schizophrenia or some form of paranoia. These are common fact patterns, but really it could be anything that causes a functional limitation. Medical diagnosis is generally, again, not a hard and fast rule, but generally it is not relevant in an Article 81 guardianship proceeding. Now that doesn't mean that somebody who's diagnosed with dementia wouldn't have a guardian appointed or that dementia isn't relevant at all. But it's not that the dementia itself that matters, it's the fact that the dementia is causing a functional limitation. Now in New York, there's also something called a Guardian ad Litem, and you'll see this a lot in landlord-tenant court, Family Court, and Surrogate's Court. These are not guardians in the sense we're talking about today. And I won't go into too much detail about Guardians ad Litem, but generally you can think of them more as an advocate. In Surrogate's Court, at least, which I'm familiar practicing in, they're really more like an attorney. Alright, so let's talk about the spirit of Article 81. So under Mental Hygiene Law article 81.02, any guardian appointed under Article 81 will be granted only the powers that are necessary to provide for personal needs or property management of the incapacitated person, the incapacitated person being the person who has a guardian appointed for them. And it must be in such a manner as appropriate to the individual and which shall constitute the least restrictive form of intervention. So generally, guardianship in Article 81 is custom tailored to the needs of the incapacitated person, and it has to be the least restrictive form of intervention. So if there's an alternative out there, guardianship won't be appropriate. So a common alternative would be a power of attorney. If someone is in need of another person to pay the rent and someone's in need of another person to pay their monthly bills because of a functional limitation, and that functional limitation will cause them to go into arrears and miss payments, if that's the only issue that needs resolution or that's the only issue that's causing the person to seek a guardian, if there's a power of attorney in place, guardianship's really not necessary. On the other hand, if there's no power of attorney in place or the power of attorney's insufficient, then guardianship might be necessary. So the determination of incapacity must be based on clear and convincing evidence, and it must consist of a determination that a person is likely to suffer harm because the person is unable to provide for their own personal needs or property management. And the person cannot adequately understand and appreciate the nature and consequences of such inability. So you're starting to see the fact pattern we spoke about is really the elements for someone needing a guardian. So in reaching its determination, the court must give primary consideration to the functional level and functional limitations of the person. So again, it's not about medical diagnosis. If you walk into an Article 81 guardianship proceeding, waving medical documentation, and your star witness is a doctor, and the doctor sits down and says, well, this person has dementia, not only may you have evidentiary issues, but you're not gonna prove your case. What you need to show is that because of that dementia, that person is unable to do A, B, and C. They don't understand the nature and consequences of being unable to do A, B, and C. They're in danger of suffering harm because of not being able to do A, B, and C, and not understanding the consequences of A, B, and C. Make sense? So in an Article 81 proceeding, we have the alleged incapacitated person and we care about their level of mental capacity. So the statute uses the word incapacity, not incompetent. And so it's really important to know when you become a person involved in Article 81 proceeding, the word incompetent, that's old news, that's archaic, out of date terminology. We're using the word incapacity. If you use the word incompetent, you're gonna sound like you don't know what you're talking about and that you're not familiar with the statute. But if you think about it just in layman's terms, without even opening a dictionary or without even thinking about these two terms in a legal matter, they're different. Incompetent means unable, right? Period. Incapacity I think is a little less harsh, right? It means not able to, but not 100% completely incapable. So we're talking about functional level and functional limitations. And again, we're not talking about a specific ailment, we're not talking about does the person have dementia, do they have schizophrenia? I mean, it's relevant that they have that, but that's not the end of the day. It's really in and of itself irrelevant. What's relevant and what matters is whether there are functional limitations and whether those functional limitations may be caused by that mental ailment, is really what matters. And again, the person must be unable to understand the nature and consequences of their functional limitations. And the order and judgment is gonna be custom tailored to the individual needs of the person. So if the person is able to understand the nature and consequences of healthcare decisions and the person is able to make an informed choice about getting an annual vaccine, or about getting a surgery, or they understand the need to see a dentist once or twice a year and they're ready, willing, and able to do that, they don't need a guardian to be able or a guardian to assist them with those things, even if at the same time they're having issues with understanding what bills they need to pay or property management, and things of that nature. Now that's clearly an extreme example. It's very rare that you're gonna have such a bright line test where someone's able to do this, but not able to do that. But there are certainly circumstances, and it happens all the time, where somebody's able to do some things but can't do other things. For example, somebody might not understand that their landlord requires them to pay rent every month. They might even be experiencing some sort of long term paranoid episode that their landlord's conspiring against them, right, with their family to take their apartment from them. But at the same time, very well may have the capability of having an allowance, of a limited amount of funds, and shopping for themselves, and buying food for themselves, and other items. They might not need aids in the apartment, they might not need assistance in other ways. And this, by the way, is a real example of a case I worked on, and it's a good example of somebody who is capable of many facets of life and is really incapacitated and has functional limitations in other facets of life. So of course, the least restrictive form of intervention is important. And so again, a power of attorney healthcare proxy isn't always the only thing that can obviate the need for a guardianship. Perhaps there could be a single transaction that needs to be taken care of with a special guardian. So you might not need a full permanent guardian. There also are occasions where you can just take care of something in one shot. So perhaps somebody's having issues, but a family member is now capable of coming, and observing, and watching, but that person doesn't necessarily need a legal right to do that. So there are other alternatives that are available often that aren't advanced directives. And the statute also permits the incapacitated person to exercise as much independence and self-determination of which they're capable. And anytime you read an order and judgment, alright, it's always gonna have that language in there, and don't think about it as boilerplate, even though it's what the definition of boilerplate would be. It's important, because it gives you some flexibility. You know, over the span of a number of years I've served as guardian for people whose capacity increases and their everyday abilities increase. Why? Oftentimes because the guardian's appointed, you know, I help get the person into the right environment, not alone, certainly with a lot of help, you know, with social workers and other support. But when they're in the right environment, maybe they're taking the right medications, they're being reminded to take medications, supports and services that may have not been in place before the guardian was appointed might be there. And so their level of capacity, the moment the judge determines that they're an incapacitated person, might not be the same in the future. It might increase, it might decrease, it might be the same. But if it increases and hasn't increased to the point where no guardian is necessary anymore, you know, you'll wanna take note of that. You'll wanna give the person as much independence and decision making capabilities as they can. If you're appointed for somebody and they don't have the capacity to decide where they wanna be buried or even to express those wishes. But in a year or two after you're appointed, you've done a good job in helping put support in place, that person's doing a lot better, their capacity has increased. They might be able to tell you with complete understanding that they have a particular area they'd like to be buried, right, one day when they passed away. So these are all things that change over time. So guardianship proceedings, Article 81 proceedings, are really civil rights cases and we're gonna hammer away a lot of that in this course. And the burden of proof is high, it's clear and convincing evidence. So you must show the court by clear and convincing evidence that somebody lacks the capacity to make or has functional limitations and is in need of a guardian. Now, if someone's appointed a guardian, they're usually called an incapacitated person, but there's another term called a person in need a guardian, which is a PING. Now that's a person who agrees to have a guardian appointed for them. Now with a PING, you don't need a judicial determination of incapacity. All you do is need the person to agree. And you'll see if you start practicing this area of law, the reality is that oftentimes it will be really important, not really important, but it will be necessary for the court to also have a judicial hearing, well have a determination of incapacity on a judicial level. Now I'd like to give a general overview of everything from before the hearing until the termination of a guardianship, and a guardianship might terminate on the death of somebody, on the regaining of incapacity, etcetera. So a guardianship proceeding will start with a request for judicial intervention. And anybody who litigates in New York will be very familiar with these RJIs. And really RJI is really just a formal legal document that says, dear court, I need a judge assigned to my case. They're also going to file and draft a petition. And the petition is the pleading in a guardianship proceeding. And the petition basically in sum will say, dear judge, I need a guardian appointed for an alleged incapacitated person. Now there's gonna be a lot of detail that needs to be included in the petition, and we'll go over that in another part of the presentation. In order to show cause, a proposed order to show cause needs to be filed with the court. And the statute itself has a form and gives requirements of what needs to be included in the order to show cause. And this OSC will give notice of the proceeding to persons interested, the time and date of the hearing, it will discuss the rights of the alleged incapacitated person, and it will touch on other things. There's also something called a notice of proceeding, which is kind of like a party invitation. It's a one or two page document that gives the date, time, location of the hearing, the names of the interested parties, the name of the attorney for the petitioner. It's a party invitation, it's a much less sophisticated order to show cause. The attorney for the alleged incapacitated person may be appointed, a court evaluator may be appointed, and if they are, they'll get to work, as well as the petitioner. A hearing will be held. If the guardian's appointed, the petitioner's counsel will customarily draft the order in judgment. And in some counties in New York, the order in judgment might just be a judgment, it might be a judgment with fact finding inside the document, they come in different flavors. I use the terms order and judgment because I'm a New York City attorney, and that's what we have in all five boroughs, is the order in judgment. But if you get to Long Island, Upstate, other parts of New York State, it might not be an order in judgment, but it's the same thing, for purposes of this presentation. A guardian will be appointed and the guardian will need to file required documents, like a commission and an oath designation, and then they'll get to work. And then as they're acting as guardian, they'll wanna review their order in judgment and see what powers they do and don't have. And they might need to bring some interim motions. For example, changing the place of abode, meaning changing where the incapacitated person lives or selling real property might require the guardian to go back to court and get additional judicial approval to perform those tasks. So many orders and judgments will typically say that the guardian has the right to change the place of abode with prior court approval. So a guardian cannot just move their ward, the incapacitated person from their apartment to a nursing home without the court giving prior permission. When the guardian's appointed within 90 days, they'll file an initial report. They're also gonna need to get certified training if they haven't done so already. Every year they'll file an annual report, and eventually the guardianship will end, the incapacitated person will die, there will no longer be a need for a guardianship, and then there will be a final account. Okay, let's go into pre-hearing through death in a little bit more detail. So first, let's talk about who can be an alleged incapacitated person. Anyone who's age 18 above with an alleged incapacity can be an alleged incapacitated person, they can be the subject of a guardianship proceeding. Now, as an aside, just for a little bit of clarity, there are some cases that will say that you could actually have a minor be the subject of an Article 81 guardianship proceeding. And if you look through the statute, you're not gonna see the words adult, or 18 or over, or anything like that, at least I can't find it. And so there is some case law that talks about this and the cases are sort of mixed, but if you wanna look at some cases like In re Doe, In re Cruz, in the Matter of Lavecchia, you can Google these and look for these on Lexis, and they talk about this. Alright, the least restrictive form of intervention. Alright, guardianship is a last resort. So let's talk about advanced directives. An advanced directive, if it exists, may or may not aviate the need for a guardian. So advanced directives can be found invalid and then a guardianship would still be necessarily, and that could happen in circumstances where they're not properly executed. Advanced directive, like a power of attorney, can be vacated by the court. For example, an agent may be acting improperly and there's no successor agent in place. The agent may just be unsuitable, alright? For example, there could be a healthcare surrogate in place, right? Well, there could be someone in the hospital who's incapacitated and they have a family member who is their healthcare surrogate pursuant to statute, but they're not fit for this job. So the hospital may bring a petition to have a guardian appointed to make healthcare decisions for the person. Okay, so as an aside, there's also some things that a power of attorney and healthcare proxy cannot do. So it's questionable whether a power of attorney or an agent under a power of attorney can be given the power to choose the place of abode of somebody. It's not clear, I wrote about this in "New York State Bar Association Law Journal" a couple years back, it's not really clear. I think that you can put that in there. But if it's not in the modification section, you could have a power of attorney with lots of different powers. But if you need to choose where someone lives, then you're sort of outta luck. So the advanced directive could be lacking. Again, things like regarding social environment and other aspects of life that are not health related, those are things that generally would not be in the power of attorney. And you know, despite popular belief, a healthcare proxy does not have these powers. And a good example is the case of In re Julia, which is a Nassau County Court case in 2004, and you can find it in the "New York Law Journal". And that's a really good case that talks about some of the lacking aspects of advanced directives. Okay, so it's important to get the petition right. So there are various requirements of the petition and Mental Hygiene Law Article 81.08 gives a nice list of what's required to put in the petition. I use this as a checklist. Basically everything that is in that subsection of the statute, I make sure it's in the petition. And so I don't wanna go through every requirement, but there are some requirements that I think are particularly important. First it's gotta be verified and under oath. It's got to give a description of the alleged incapacitated person, or AIP's "Functional level, including their ability to manage the activities of daily living, their behavior, and their understanding and the appreciation of the nature and consequences of any inability they have to manage the activities of daily living." So if there's powers sought to either personal needs and/or property management, there has to be specific factual allegations. These are really the bread and butter of a petition, this is what is going to persuade the court. So it is not enough just to say the alleged incapacitated person cannot manage their own finances. It needs to be said that they can't manage their own finances, and that is because we observed A, B, C, and D, the person's missing bills, they're in arrears, they're getting delinquency notices, their credit card bill has been paid in a year and a half, etcetera. Same with personal needs, there has to be specific factual allegations. The person went to the doctor and didn't understand when the doctor asked them do they want a flu shot or not. Things like this. The petition should really also give a list of what powers the guardian's requesting. And oftentimes you're really just requesting any and all powers that are necessary. However, any and all powers that are available, but generally you'll want to custom tailor your requests to be a little more specific on many occasions to fit the needs of the person. So you know, there might be a specific account that's questionable whether it should be marshaled or collected. And maybe you'll wanna put in the order and judgment, we need the power to marshal that particular account for this particular reason, right? You wanna be specific and you wanna give the court a heads up. So when you're done with the petition, your client's verified it, you're going to need to file it with the court, and you'll file it with the request for judicial intervention. And we spoke about this before, and you could get a little bit more information about this on the court's websites. But generally this is just an RJI, it's just a document that tells the court that you need a judge assigned to the case. And the cost of an RJI is $95. Now, very, very quickly, I'm going to digress before I talk about the order to show cause. Prior to COVID 19, almost all adult guardianship proceedings were filed via hard copy papers. Now for the most part, they can be filed through e-filing on NYSSEF. Just keep in mind that they're hard to get people sometimes access to, although hard copies are also difficult to get access to. But there are all sorts of little wrinkles and little things that need to be known if you're filing through NYSSEF, but I prefer NYSSEF over a hard copy filing. I find it to be much more streamlined, saves lots of time. You don't have to prepare your own RJI, for the most part, you fill in some information and it generates an RJI for you. It really streamlines the process, saves your clients some money. So let's talk about orders to show cause. This is a special proceeding, and so it needs to be brought by order to show cause. The order to show cause needs to be served on the alleged incapacitated person. It'll need to be served on the attorney for the alleged incapacitated person and the court evaluator. So generally those are people who will also need to receive a copy of the petition with the order to show cause, but you'll note, there are people that will just receive an order to show cause in order of proceeding, and they will not receive the petition. The fee for an order to show cause is $45. And there are specific requirements for this order to show cause. If you are familiar with motion practice and procedural rules in New York courts, you'll probably have prepared numerous order to show causes and filed them in court. But this particular order to show cause has some specific requirements that are in the statute in Article 81.07. First of all, the order to show cause needs to be in a large type and it needs to be in plain language. It's going to include a statement of the AIPs rights. The name, address, telephone number of the AIP, I'm sorry, for the attorney of the AIP, needs to be in the order to show cause. There needs to be a list of powers a potential guardian may have. And there there's a statutory required legend you'll wanna put in there. And the statute's got all of this information. Manner of service of the order shall cause is also in the statute, and you're gonna wanna pay particular attention to how different people need to be be served in different ways and those requirements, 'cause if it's not done properly, you're ripe for appeal, or you're hearing, if the court catches on or notices that something was not served properly, your hearing will end up being delayed. So the notice of proceedings is a really very simple document. The person who is served with the notice of proceedings in the statute, the contents, again, you can refer to the statute MHL 81.07. It's really like a short form order to show cause, it's an invitation, I like to think of it. It's got much fewer details than the order to show cause, the requirements in the notice of proceeding aren't nearly as strict, but it's enough to put important people on notice. So for instance, you may have an interested person who's not really a party to the proceeding, perhaps the alleged capacitated person's son needs to receive a copy of the order to show cause and notice of proceeding. Well, the order to show cause is somewhat complicated, long legal document. The notice of proceeding might be a page or two. It's gonna be a lot clearer for a layperson to understand who they need to call, where they need to be, what's going on, just by giving a quick glance at the notice of proceeding. So let's talk about the role of the attorney for the AIP. And this is part of the statute of Article 81.10. So the court appoints counsel in the following instances. If the AIP requests counsel, if the AIP wishes to contest the petition, if it's a contested proceeding, the court must appoint counsel for the AIP. If the AIP does not consent to the authority requested in the petition to move the AIP to a nursing home or other residential facility, the court will need to appoint an attorney for the AIP. If the petition alleges the AIP needs major medical and dental treatment and the AIP doesn't consent, attorney needs to be appointed. Attorney also needs appointed if the petition requests the appointment of a temporary guardian, if the court determines there's a possible conflict between the court evaluator's role, and in the advocacy needs of the AIP. And also there's a catchall provision, anytime the court determines that appointment of counsel is helpful to resolution of the matter. The role of the attorney for the AIP is a little controversial. There's really two schools of thought. One is that the attorney for the AIP should be advocating only for the AIP's civil rights, and basically against the guardianship. There's also the school of thought that I subscribe to that you need to advocate for the AIP's best interest. And that's basically based on the rules that govern fraternity conduct in New York. The court will generally appoint counsel from the Part 36 list, the fiduciary list, or they'll appoint Mental Hygiene Legal Service. And 9 times out of 10, the attorney from MHLS, the Mental Hygiene Legal Service, is going to subscribe to the view that they need to be arguing against the guardianship, no matter what. Although there are exceptions, certainly if the AIP seems to have a high level of capacity, and is agreeing, and it's in their interest, MHLS may not put up much of a fight. But that's a common exception to the rule, I would say. The AIP can choose their own counsel and they have the right to do so. If that's the case, the court appointed counsel will continue their duties until the court determines that the retained counsel has been chosen freely and independently by the AIP. And so what will happen is there'll be somewhat of a pre-hearing before the hearing as to the AIP's capacity to retain counsel. I see that rule or requirement for the court to make sure that the attorney has been chosen freely and independently waived by the court. I don't think it's authorized by statute, but courts overlook it all the time and don't always do a full judicial review. It's rare, but I have seen it happen. So the court appointed attorney will stay until the court is satisfied. But obviously if the AIP lacks capacity to contract, the question becomes how can the AIP enter into a retainer agreement or freely choose their own counsel? And so oftentimes counsel cannot continue. But there's also the school of thought that if the AIP has even just enough capacity where it's arguable they understood who they were retaining as counsel, they should have the right to retain counsel. It's a civil right, so the courts will often defer, but it's a case by case basis. So the role of the attorney for the alleged incapacitated person is a bit complicated in determining. There are really two different schools of thought. One school of thought is you represent the best interests of the alleged incapacitated person. The other school of thought is that you represent the wishes of the incapacitated person or fight against the guardianship under all circumstances. They're are two different extremes. But the first school of thought really comes from the ethics rules, Rule 1.14 A, "Which says when a client's capacity to make adequately considered decisions in connection with representation is diminished, whether because of minority, mental impairment, or some other reason, the lawyer shall, as far as reasonably possible maintain a conventional relationship with the client." Comment five then goes on to say that, "If a conventional client-lawyer relationship cannot be maintained because the client lacks efficient capacity to communicate or to make adequately considered decisions in connection with the representation, then the lawyer is permitted to take reasonably necessary protective measures. In taking protective action, the lawyer should be guided by such factors as the wishes and values to the client to the extent known, the client's best interest, and the goals of minimizing intrusion into the client's decision making autonomy and maximizing respect for the client's family and social connections." So my view is that really Rule 1.4 A, the best interests process of thought, and the other extremes, either just advocate what your client wants, it doesn't really matter what their capacity is, or fight against the guardianship no matter what, because it's a restraint on their civil rights, my opinion is that you don't need to go to either extreme. One can represent their client's best interests while being the person involved in the proceeding that is the skeptic. You can acknowledge that your client has issues with capacity, has functional limitations, while at the same time advocating for the least restrictive guardianship. You can be the person that cross examines all of the petitioner's witnesses and really holds them to account, really makes sure that their testimony is backed up, that they don't have some other interest, that they don't have some other motive. You can really be the skeptic, the one really trying to dig into things to find the other side of the story if there is one. It just doesn't need to only be the court evaluator's role. At the same time you can make a determination as what is your client's level of capacity? What are they capable of doing? Again, if you feel that your client, alright, does not have capacity, and they don't want a guardianship, and you wanna fight against it, it's certainly one school of thought. Because it's reasonable in the sense that there might not be any other person involved in the proceeding that's going to take the position that a guardian's not needed, and that voice is necessary there. If you don't feel comfortable taking such an extreme position because you do feel that your client might be in danger, you will wanna be going out and try to advocate what other resources are there. Maybe we don't need a power to, you know, do A, B, and C, because there are alternatives to A, B and C. But again, this is something that is really an individual decision. And you know, if you read some of the, you know, Supreme Court and Federal Supreme Court's cases on, you know, the right to a self-determination, and you know, both schools of thought have merit, but I don't think they need to be exclusive. I don't think it's one or the other, I think you can do both. So to go into a little bit more detail, if you've taken the point of view that you wanna represent your client's best interests, at least to some extent, well, certainly in any case you're gonna be representing your client's best interest, but a determination of what that means could be different from case to case. Here are some ideas of what you can do. It could mean advocating for a guardian when the client consents, right? It might seem a little backwards, but if the client feels they want a guardian and you feel that they have the capacity to make that decision, remember, it's not a black and white scenario, someone's level of capacity, they can understand certain things and have issues in other areas. They might know that they have severe memory issues, but they still can analyze and understand that they have the functional limitations. Now, I understand the statute says they must not be able to understand the nature and consequences of their functional limitations, but remember too, there is always a person in need of a guardian, potentially somebody who agrees to a guardianship and there doesn't have to be judicial determination of incapacity. So that's always an option. It could mean arguing against the appointment of the guardian for some or all of the powers. Again, this is a case by case basis. Making sure jurisdiction is proper and that service has been effectuated upon all necessary parties. That's really important. This is a civil rights case and no matter what position you're taking, whether you're an extreme best interest person or you're an extreme argue against guardianship at all costs person, you wanna make sure jurisdiction's proper, because there's gonna be a determination in the end, no matter what, that's gonna affect your client's civil rights. Well, not necessarily if the whole thing's disposed of, but certainly you want a proper determination if it's going to affect your client's civil rights. So making sure jurisdiction's proper and that all necessary parties have been effectuated is really important, especially if you feel that there is somebody out there that could participate in the proceeding or that needs to know about this proceeding that hasn't been served. Most of the time the court evaluator is gonna be the one who finds these people, but there's no reason that the attorney for the AIP can't work side by side from the court evaluator. There's no reason to rely on the court evaluator. Again, that's a case by case basis. It's not always necessary to go out and investigate and do the same things as the court evaluator. There's the reason the court evaluator's there. But if the court evaluator isn't sharing information or, you know, you wanna find out certain information on your own, it's certainly, certainly appropriate for you to investigate. Again, investigating, even if the court evaluator is appointed, you know, how can you know what's in your client's best interests if you do not investigate and confer with your client, right? You might not feel that you wanna just rely on the court evaluator's findings. I think you'll certainly wanna prepare your client for an interview with the court evaluator and the hearing to the extent possible, right? No matter what your client's level of capacity is, well, that's not true. If your client has capacity, any level of capacity, to have some sort of meaningful interview with the court evaluator and some sort of meaningful participation at the hearing, You might wanna prepare them if you haven't determined that you don't want them participating in the hearing. Now, preparing for the interview with a court evaluator is generally gonna be mandatory, the judge is gonna want the court evaluator to ask your client questions or at least observe your client. Whether your client participates in the hearing is different. You know, again, the case law is pretty clear that the client doesn't have to testify under oath, but generally the client should be there according to this statute, so the court can observe your client. So even if they're not gonna be testifying, if they have any meaningful level of participation and any way they can engage, preparing them is really important. And of course, preparing them would mean taking into account what are their goals in the proceeding? You wanna explain what the guardianship proceeding is to your client. Don't take for granted that they know what's going on and what this is, even if you feel that they have a very high level of capacity, even in an extreme circumstance where you meet a client, and you know, in these rare cases where they have full capacity and somebody for, you know, mischievous reasons is bringing a guardianship proceeding, you wanna explain everything to them. You know, people have all sorts of wrong ideas about guardianship, and bad information, and assumptions they've made. You want them to understand what this process is and what's going on. You wanna make sure the court knows your client's wishes and values, and this is in any case, but especially in cases where your client has a lower level of capacity. So for instance, if your client really can't participate at all and your position is, well, a guardian's gonna have to be appointed because they're in an extreme amount of danger, you want to make sure and go out and investigate, I think, on your own, and not just rely on the court value. What might your client's values be about end of life decision making or certain healthcare? What would that have been before they lost capacity? Did they have conversations with their family during their life about end of life decisions, right? Did they have conversations with their family about how they manage their finances, right, are they a very frugal person, right? Do they prefer to always invest in stocks and never bonds, right? All these things might reflect how the guardians gonna invest their funds or what kind of end of life decisions the guardian will make for them. You want that to be known, because you really want to preserve as much autonomy and respect their values and wishes as much as possible. Again, you're gonna want to cross examine everybody and you're gonna want to do it as vigilantly as possible. Make sure the petitioner's allegations are truthful, right? You're gonna wanna prepare witnesses. If you think that there's somebody who can testify against a guardianship and your client doesn't want a guardian, and it's iffy, you know, that your client needs a guardian, get those witnesses going. Search for a power of attorney and a healthcare proxy, right? It's possible that there are advanced directives out there that the court doesn't know about, right? And if those are valid in the person who the agent's willing to serve, there's no reason in some circumstances why that couldn't be a lesser restrictive alternative than guardianship. Not always, but often. Ensuring the appointed guardian is the appropriate person is very tricky, but I think is very important. It's gonna be hard to argue that a specific person that the judge appoints is not the right person for the job. Of course, there are rare cases where you might feel that. But you might say, well, this is a person with a very high level of needs in this particular area, and the guardian should be an individual who is very well versed in this area. So for example, let's say that the alleged incapacitated person is going to be appointed a guardian. The first thing I'm gonna tell the judges, oh, and let's say that this person was during their life, the owner of quite a bit of commercial property, and they owned it in their own name, alright? They owned it in their sole name and they owned perhaps 10, you know, different commercial properties that they rented. Well, the guardian who's gonna be managing those properties probably shouldn't be me, someone who's never been a landlord before in their life. It probably it should be somebody who has a lot of experience in commercial real estate and acting as a landlord, collecting rents, knows these things, alright? Because you're gonna want someone who understands this. And of course you wanna protect your civil rights at all times, right? Even in circumstances where you feel that it might be in the client's interests to sort of look the other way, you wanna make sure everything is done properly. They begin their duties. Alright, what are the next steps? Completely depends on the case, but some of the very common steps are, first you wanna marshal assets, meaning collects funds, right, or retitle funds, or move funds into a guardianship bank account. You might need to go to the Social Security Administration office or call Social Security to become the representative payee. You might need to apply for Medicaid or new Medicaid. Look into other public benefits. You want to talk to family members, social workers, nurses, people who are familiar with the incapacitated person to figure out, what are their needs, right? What needs to be done, what's missing in their life? And there might be other information regarding their finances or public benefits they're entitled to that you wanna look into that didn't wind its way up into the court evaluator's report. Remember, the court evaluator has a limited time to do their investigation. It might not always be a full investigation. Most of the time you're gonna get a very thorough investigation from the court evaluator. And when you get a copy of the report as guardian, which you usually do, that's often a great place to start to start learning about the case. The guardian is almost always required, well, they are always required to visit not less than four times per year. 99% of orders and judgments will say not less than four times a year. I have had one order and judgment say not less than four times a year, every three months. Which makes a bit more sense, because obviously it doesn't make sense if you visit your AIP on September 1st, 2nd, third, and fourth every year. It doesn't really speak to the spirit or the policy behind the guardian visiting. It's probably a good idea to spread that over three months periods. And obviously, if you're able to visit the AIP more often or you need to visit the AIP more often, you should. It depends on the case, if the person's in a nursing home and their life's in the nursing home, you might not need to visit that much more often. You really have to use your judgment. Guardians should keep time records. Guardians do get paid. And the statute generally says, you know, they can be paid a fixed amount pursuant to Surrogates Court Procedure Act 2307 or 2309. Sometimes it's by the hourly amount. But in any case, guardians should always keep time records so that they can establish their time. I also think it's a great idea to keep time records just so you know what you did, what you didn't do, so you have notes. So the guardian's also gonna need to make, as we spoke about, inter motions, right? There might be powers the guardian needs that are not afforded to them in the order and judgment. Or there might be a power that the guardian needs that the order and judgment anticipates they'll need, but requires prior court approval. For instance, end of life decision making. That is a common type of power that a guardian will need to go back to court for. So let's say, for example, you are appointed for somebody who is 90 years old and they have severe dementia, and you have determined that you cannot find whether they've expressed any preferences regarding end of life decision making. And you have spoken to the nurses, the social workers, and they have told you that if you perform CPR on this person, alright, you could puncture their ribs and cause them great pain, and it wouldn't do anything to extend their life or quality of life very long, okay? So you say, I need a DNR order. You also might say, I don't want to intubate the person because that would be unnecessary, it would cause unnecessary discomfort. You ask the court for a DNI order, okay, you would go back and make another interim motion. Things like surrendering the residence, or paying a large amount of funds, moving the AIP to another location, these will often require the guardian to go back to court. The guardianship will eventually end. Usually it ends because the AIP has died. And the next steps will be the actual burial or the cremation. The guardian will be required to file what's called a statement of death, which basically says, dear court, and some parties, the AIP has passed away. The guardian will also need to file, at some point, the statute gives the deadlines, a statement of assets and notice of claim, and they'll need to serve that. And this is basically something saying, dear court, the deceased AIP had the following assets and liabilities on the date of their death. And then they'll need to file a final report, which is really their final account of any financial activity as guardian. The guardian's authority in most matters ends, the executive of the estate is gonna be the one that's gonna get involved with most of the finances. But there are some things that the guardians generally have the power to do, it depends on what's in the order and judgment, but usually it's limited, and it's usually limited to disposing of the AIP's remains and paying monies for any known debts, liens, or administrative costs that the guardian would've been able to pay had the AIP been alive. So this generally concludes the presentation. I do wanna give you a few good resources that you can use to continue learning more about the topic. One is the New York Court's website has a document called Article 81 collected cases, which is a long PDF of many different Article 81 cases. I also highly recommend attorneys, even if they don't intend to ever represent or serve on the Part 36 list, if they're gonna do any guardianship work for petitioners, the certified training is great. You need to take that to be able to be an attorney for an alleged incapacitated person, a court evaluator, and a guardian. But it's still a very great program. The New York State Bar Association's Adult Guardianship book, it's great. And "New York Elder Law" which is produced by Lexis-Nexis, has a lot of great adult guardianship stuff in there too. Alright, thank you so much. I hope you enjoyed the presentation.

Presenter(s)

Daniel Reiter
Attorney
Law Firm of Daniel J. Reiter, Esq.

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