To watch your loved one lose the ability to take care of oneself is immensely painful. In some cases, your loved one may need a guardian to manage his or her affairs. This article will give you an understanding of the process of applying for guardianship under Article 81 of the Mental Hygiene Law.
First, how do you end up in Article 81 proceedings? In some cases, a facility such as a nursing home or hospital will file a petition in court asking for a guardian to be appointed. This may arise where they need someone to file a Medicaid application so that medical bills can be paid, and the person who is being cared for does not have that ability due to mental or physical issues. In some of the sadder cases, the facility may file for the appointment of a guardian because care staff believes that the patient or resident needs to be protected from relatives, spouses, etc. who are interfering with medical treatment and/or engaging in financial abuse.
Additionally, people’s loved ones can file for guardianship. Those loved ones can include: (1) anyone who has a right to the property of the person if the person passes away, (2) the executor of an estate where the person is or may be the beneficiary, (3) a trustee of a trust where the person controls the trust or is the trust’s beneficiary, (4) the person with whom the person lives, or (5) any other person concerned with the person’s welfare. People’s spouses and adult children often apply for guardianship. People may file because they want to make medical decisions on behalf of the relatives, to handle their assets, to protect their assets for purposes of estate planning, or to consent to settlement of a lawsuit on behalf of the loved one (e.g., worker’s compensation, medical malpractice).
Unless someone else (like a nursing facility or hospital) has already asked the court to appoint a guardian, you will have to file an order to show cause and petition. The person who you want to be guardian for is called the alleged incapacitated person (AIP).
Your papers will have to detail which powers you are asking the court to grant you, the reasons why you believe that the person cannot handle his or her own affairs, why you believe that you should be appointed as guardian, and the assets that you will have to marshal (get control of). One unpleasant aspect is that the papers will have to be given to the AIP.
The court will appoint a court evaluator, and may also appoint an attorney to represent the AIP. The court evaluator’s job will be to make recommendations to the judge and tell the judge which assets the AIP has. The court evaluator will have a position about whether the AIP is incapacitated, or unable to manage his or her own personal needs and/or property. If the court evaluator finds that the AIP is incapacitated, then the evaluator will also make recommendations about who should be appointed as guardian. The court evaluator will speak to the AIP, to you, to the social worker if the AIP is in a facility and any other friends or relatives who have significant knowledge about the AIP. Because the court evaluator will need to know about the AIP’s assets, it will be helpful for you to have copies of items like Social Security statements, pension statements, bank statements, mortgage statements, and brokerage account statements available for the court evaluator to inspect. If there is significant debt, then you should also have copies of items like credit card statements available.
Ultimately, there will be a hearing before the judge. Before the hearing, the judge will likely speak with the attorneys and the court evaluator to determine whether it would be in the AIP’s best interests to attend the hearing at all and if it is, whether it would be more comfortable for the AIP to attend remotely. You will testify about topics which include, but are not limited to, the history (when and how the AIP became incapacitated), why you are asking to be appointed as guardian, your relationship to the AIP, and the AIP’s financial condition. The court evaluator will also testify about his or her investigation. There may also be other witnesses, like a social worker from a care facility, and any other individuals, like other relatives, who want to make their voices heard.
The judge may ask questions of you, like whether you understand that you will have to take a course, whether you have been convicted of a felony, and whether you understand that you have to submit annual accountings. We will get to the first and third issues later.
If the judge appoints you (or anyone) as guardian, then the judge will also appoint a court examiner.
You will have to take a course on guardianships, and you can get information about your options from the Guardianship Clerk in the courthouse. If there are significant assets, the court will also order you to obtain a bond. Once you have taken the course and obtained the bond, then you will obtain your commission, which will officially give you powers as a guardian.
The court evaluator, and the attorney for the AIP, will be awarded fees, which will be paid from the AIP’s assets. If the assets are insufficient to pay the fees, then the court will likely order the person who filed the petition (whether it be you or a facility) to pay anything that is left over.
Once you obtain your commission, the court examiner will give you a due date for your ninety-day report, which will require you to present proof that you completed the course, provide information about what you are doing as guardian, and also list the assets of the incapacitated person.
After a guardian is appointed, then the assets of the incapacitated person will be under the supervision of the court examiner and the court. It is critical that you keep detailed records of every expense, including but not limited to bank statements, copies of checks, rent stubs, and receipts. Every May, you will have to submit an annual accounting, which includes records of every deposit, and every debit, made on behalf of the incapacitated person. You will have to send the accounting to the court examiner with copies of bank statements, checks, and receipts for any significant purchases. Additionally, you will have to file it with the court. Whenever you want to make a significant expense for the incapacitated person, you will need to submit an application to the court examiner, who will recommend to the judge whether or not to approve it. Those expenses will need to be approved by the judge.
Being a guardian is not easy, and it can be tedious. However, always remember that you are making a huge difference in your ward’s life, by protecting his or her ability to thrive in spite of disability!
Joseph H. Nivin, Esq. is the owner of The Law Offices of Joseph H. Nivin, P.C. a firm with locations in Forest Hills, Queens, and midtown Manhattan. The firm handles family and matrimonial law cases, Article 81 guardianships, immigration, foreclosure defense, landlord-tenant law, and bankruptcy proceedings. You can find more information at www.nivinlaw.com.
Apply for your Guardianship Bond by clicking the link below or call us at 800-921-1008 to speak to a representative today.