Article 81 of New York’s Mental Hygiene Law establishes the system to have a guardian appointed for an individual who is determined to be incapacitated and can’t make personal or financial decisions. The proceeding also must find that there are no “advance directives” that the “alleged incapacitated person” (A.I.P.) may have signed, such as a power of attorney. If such planning has been done by the “A.I.P.” who had capacity there may be no need for the appointment of a guardian and no taking away of control from that individual.  If not, the appointment of a guardian may be necessary.

The guardianship system often provides the safety net for persons who have not appreciated the need to establish the legal structure through powers of attorney or trusts to manage their financial affairs and prepare health care proxies and “living wills” to have someone make health care decisions for them when they become incapacitated, thus avoiding the guardianship.

The guardianship attorneys who have extensive experience in guardianship matters at Pierro, Connor & Strauss represent families and friends of persons who have functional issues in these proceedings. A guardianship lawyer in our practice can answer your questions about how and when a guardianship may be the appropriate solution for a person who has lost capacity, the process, the likelihood of success in obtaining the appointment of a guardian, and the costs involved in the proceeding.

Contact Us

Call us today for a consultation

Healthcare concept of professional psychologist doctor consulting and comforting elderly patient in psychotherapy session or counsel diagnosis health.

The Guardianship Process Under Article 81 and the Order of Appointment

An Article 81 proceeding is commenced by the preparation and filing of a petition asking the Supreme Court (New York’s trial court) to hold a hearing and make a determination whether the alleged incapacitated person is in fact incapacitated by evidence offered by the petitioner which is clear and convincing.  The petitioner, a lawyer or other professional appointed by the court to be a court evaluator (court investigator) presents evidence. A lawyer, often appointed by the court may offer witnesses.  In order to protect the patient physician privilege, the testimony of the physician is not permitted, so the evidence allowed is about the functional ability of the A.I.P.

Following the hearing the judge will render a decision.  If the court finds the A.I.P. is incapacitated, the court will appoint a guardian and give that guardian one or more of a broad range of powers, based on the needs of the incapacitated person and to standards of the least restrictive alternative.  New York tries to limit the rights taken away from the incapacitated person to the minimum.  The judge in the Article 81 proceedings will determine whether the guardian’s authority is global or only limited to specific actions.  Accordingly, the guardian can have broad or limited authority to take action concerning the incapacitated person’s life, depending on that person’s abilities and needs.  The incapacitated person is frequently designated as a person in need of a guardian rather than an incapacitated person. Family members and limited other Individuals can also appeal certain decisions.

How Long Do Guardianship Proceedings Take?

An Article 81 guardianship lawyer will need several days to prepare and file a Verified Petition for Guardianship when a family first retains them. The law requires at least 28 days between the filing of a Verified Petition and a hearing on the matter, but most likely the 28 days will commence when the judge signs the “Order to Show Cause,” the “process” that actually is the starting date of the proceeding. In most cases, barring delays, adjournments or other requests for more time to gather evidence and prepare for the hearing, there will be a hearing. The court will issue its decision and order within 90 days, but the norm is longer. Temporary guardians can be appointed in cases of immediate need.

Conflict of Interest Issues

If you feel your family member needs protective assistance, you can request that a Pierro, Connor & Strauss, LLC lawyer meet with that person. However, be careful. If we do conclude that your family member is, in fact, incapacitated, and is unable to engage in planning, we will then likely be required to decline to represent you in an Article 81 proceeding. Why?  Because once we have met with the incapacitated person, that meeting creates an attorney-client relationship which may disqualify us from representing the family. To avoid this, an in-depth discussion with a PCS lawyer is advised prior to meeting with the person with medical issues.

Act Swiftly If You are Considering Guardianship

If you anticipate that your incapacitated family member will need a guardian to manage her or his affairs, you should contact a knowledgeable Article 81 guardianship attorney as soon as possible.

We invite you to call the York Article 81 Guardianship Lawyers at Pierro, Connor, & Strauss, LLC for more Information on the guardianship Issues discussed here.

 The Article 81 guardianship attorneys at Pierro, Connors, & Strauss, LLC have offices in Albany, Schenectady, Rensselaer, Saratoga, Green Counties, and New York City. We also represent families in the Hudson Valley, Westchester and in New Jersey and Florida.

We are sensitive to the stress that family members might feel when addressing an elderly relative’s financial and health care needs. The Article 81 Guardianship attorneys at Pierro, Connor & Strauss will help you determine the best solution for assisting in the management of the lives of family members who are having difficulties with life management to develop the appropriate procedures to assist them, and if appropriate, to represent you if a guardianship proceeding is the appropriate solution.

Life Happens…..Are You Prepared?

Contact us today for a FREE consultation and we’ll be happy to help take the worry out of tomorrow so you can live today.

Call Us