An individual sometimes loses the ability to manage his or her personal or financial affairs. This can occur in a variety of circumstances, but the most common involves an elderly person who suffers from Alzheimer’s Disease or some other form of dementia. Article 81 of NY’s Mental Hygiene Law provides remedies by allowing the court to appoint a person (usually a family member) to make certain decisions for the person.
Article 81 became law in 1993, and it aims to treat the person with dignity. Until several decades ago, there was a tendency to for courts to declare as “incompetent” persons who needed help with certain decisionmaking. Such a declaration would strip the person of various civil rights. In fact, going back to the first half of the 1900’s, people who today are described as “incapacitated” were often referred to in court cases as “lunatics” or “idiots.” Fortunately, the law has developed in a way that recognizes that those who need assistance should still be treated with respect.
Today, the law in New York permits the powers to be given to the guardian to be tailored to the individual’s particular needs: Sometimes a guardian is given broad powers; at other times, depending on the person’s abilities, the powers can be very limited. And there is even the ability to make an appointment for a “single use transaction,” in which no actual guardian is appointed. Article 81 was designed to provide the person as much personal dignity and freedom as possible, depending on his or her circumstances.
How a Guardianship Works
Guardianships are treated on an expedited basis — often the entire proceeding can take only a month. A hearing is set usually for two to four weeks after the papers are filed with the court. The person who is the subject of the proceeding must be present unless unable to meaningfully participate.
- The court appoints a “court evaluator” (often an attorney) to gather facts about the person who is the subject of the proceeding and to prepare a report with recommendations.
- In some cases, the court is empowered to appoint an attorney for the person who is the subject of the proceeding, but as a practical matter, this happens only infrequently.
- In most cases, the hearing itself is very quick, perhaps an hour or so (so long as the proceeding is uncontested).
- Often, Mr. Haber will require either no upfront payment towards fee or only a limited payment and will allow the Court to set his fee from the person’s assets.
Ways to Avoid a Guardianship
The person for whom a guardian may be appointed is known as the Alleged Incapacitated Person (“AIP”). Quite often, if the AIP, while he or she was still able to make decisions for himself or herself, executed a power of attorney in favor of another person, that power of attorney may suffice and may render a guardianship proceeding unnecessary. In such cases, considerable time, effort, and money can be saved. The lesson here is that a power of attorney is usually the biggest bang for the buck, and everyone really should execute a power of attorney in favor of a trusted family member or friend.