Guardianship-300x201Article 81 of the New York Mental Hygiene Law (MHL) contains the provisions concerning the appointment of a Guardian for an individual.  There are basically two types of Guardians – a Guardian for Personal Needs and a Guardian for Property Management.  The New York Probate Lawyer Blog has published many articles concerning Guardianships in New York.

In short, MHL Section 81.02 provides that a Guardian may be appointed when it is necessary for the personal needs, property management or safety of an individual.  A finding of incapacity based upon clear and convincing evidence is required.  Incapacity means that a person cannot handle personal or property management functions and cannot appreciate or understand the circumstances surrounding such disability.  As a result, the person is at risk of suffering harm.  The Guardianship Court focuses on a person’s ability to handle activities of daily living.

A Guardianship case in New York is started by the filing of a Petition with the Supreme Court typically in the County where the alleged incapacitated person (“AIP”) is located.  The Guardianship Court will set a hearing date to hear testimony from the parties.  Also, the Court may appoint an attorney to represent the AIP at the hearing.  A Court Evaluator may also be appointed to review all of the facts, interview the AIP, the petitioner and other persons who have relevant information.  The Court Evaluator then prepares a report for the Court with recommendations as to whether a Guardian should be appointed, and, if so, who should be appointed.  This process may take at least a few months.  Temporary Guardianship appointments are sometimes granted in appropriate situations.