Mental Hygiene Law Article 81 Guardianship proceedings are used to appoint a guardian for an adult who is incapable of handling their own financial matters and/or personal care. That adult is referred to as the “alleged incapacitated person” or “AIP.” Article 81 guardianships typically involve elderly AIPs, AIPs with mental health issues, and/or AIPs with severe substance abuse issues.
Article 81 guardianships are handled in Supreme Court. They are generally commenced by a family member, a hospital or facility where the AIP is receiving care, or adult protective services. An Article 81 guardianship proceeding is started by a Petition and an Order to Show Cause. In the Order to Show Cause, the judge typically appoints an attorney for the AIP, appoints a court evaluator, and specifies which individuals (certain family members and the director of the facility where the AIP resides) will be served with notice of the guardianship proceeding.
The role of the Court Evaluator is to investigate the allegations in the Petition regarding the abilities of the AIP, the resources of the AIP, the necessity of a guardian, and the suitability of the proposed guardian. The Court Evaluator prepares a written report for the Court.
If the AIP has the ability to understand what it means to have a guardian appointed, the AIP can choose to consent to the guardianship, which avoids the Court having to make a determination that the AIP is incapacitated. If the AIP does not have the ability to understand what it means to have a guardian appointed or if the AIP refuses to consent to having a guardian appointed, a hearing must be held.
During the hearing, the Petitioner presents witnesses and documentary evidence in support of the request that a guardian be appointed and regarding the suitability of the proposed guardian. In determining whether a guardian is needed, the Court must consider available alternative resources, which include a Power of Attorney and/or Health Care Proxy that the AIP previously signed and that allow an agent to perform the duties for which a guardian would otherwise be needed.
If the Court determines the AIP is incapacitated and a guardian is needed, one will be appointed. Article 81 Guardianships are based on the least restrictive means concept, meaning that the powers granted to the guardian must be narrowly tailored to the needs of the particular individual. A guardian appointed to assist with personal care is referred to as a Guardian of the Person, a guardian appointed to assist with financial matters is referred to as a Guardian of the Property, and a guardian appointed to assist with both is referred to as a Guardian of the Person and Property.
Depending on the circumstances, the Guardian may be required to file a bond and take a guardianship training course. The Guardian will also fill out an Oath and receive a Commission from the County Clerk, which will be used as proof of the guardianship and the powers of the Guardian.The Guardian will be required to file an Initial Report with the Court within 90 days of receiving the Commission and to file an annual report in May each year thereafter.