Article 81 Guardianship

~ Protection for your loved ones ~

Under Article 81 of the New York Mental Hygiene Law, the Supreme Court may appoint a guardian to manage the affairs of an incapacitated person who is incapable of managing their own personal or financial affairs. It is absolutely imperative that an incapacitated person obtain a guardian to avoid financial or personal distress.

A court appointed guardian can solve a lot of problems and relieve an incapacitated person’s financial suffering. Guardians can:

  • Pay bills on behalf of the incapacitated person

  • Prevent a person from neglecting their health

  • Stop abusers from taking financial advantage of a person’s incapacity

  • Stop physical abuse perpetrated on an incapacitated person

  • Protect a person’s assets from Medicaid

If your loved one is suffering from a condition which makes it impossible to handle their own personal or financial affairs, there is no need to let them suffer. We can help you obtain guardianship for that person to improve their quality of life.  The Supreme Court gives family members preference in the appointment as guardians, but the court may appoint a non-family member as guardian if there are serious differences over which family member should serve this role.

The Process

Here is how a guardianship proceeding works:

Generally, a petitioner's (typically a family member) attorney makes a motion to the Supreme Court asking the Justice to appoint a person (a guardian) to act on behalf of the incapacitated individual. The Justice will usually refer the case to an evaluator, who investigates the situation and makes a recommendation to the Justice ago based on the facts of the case. Depending on the circumstances, the Justice may appoint an attorney to represent the incapacitated person during the pendency of the guardianship proceeding. 

The petitioner bears the burden of proving by clear and convincing evidence that the incapacitated person cannot manage their personal or financial affairs.  The court will listen to the arguments set forth by parties who have standing to oppose the appointment of a guardian, if any. The court will then render a judgment whether to order the appointment of a guardian. 

The Guardian's Responsibilities

Guardianship is not to be taken lightly, because another person's life is in the guardian's hands.Guardians must take a state mandated course explaining their responsibilities. Ninety days after the guardians appointment, the guardian has to file an initial report with the court summarizing the incapacitated person's status and enumerating their assets. Guardians are required to make a minimum of four visits to the incapacitated person yearly. By May 31st of each calendar year, the guardian files an annual report with the court detailing all financial transactions taken on behalf of the incapacitated person. When the guardianship ends, the appointed guardian must report to the court all activities taken during the entire appointment as guardian. There are severe civil and criminal penalties for abusing this position of trust.

We are here to help you and your loved ones obtain the quality of life you deserve. Call us today with any questions. We care about protecting those innocent parties who cannot protect themselves.