Article 81 of the Mental Hygiene Law provides for the appointment of a guardian to satisfy personal or property management needs of a person who may require some assistance but does not require a traditional conservatorship and judicial committee. Guardianship is intended to operate in the least restrictive manner and without the loss of civil rights.

A guardian may be appointed after a hearing if the person for whom appointment is sought agrees to such appointment and the court finds that a guardian is necessary. On the other hand, if the alleged incapacitated person (AIP) objects to the appointment, a judicial finding of incapacity must be made. If a person’s physical disability necessitates the appointment, the person may welcome guardianship assistance. In fact, the AIP may self-petition for guardianship. See, e.g., Matter of De France, 710 N.Y.S.2d 612 (2nd Dept. 2000).

The Supreme Court has primary jurisdiction over guardianship proceedings, while the Surrogate’s Court has jurisdiction to entertain petitions for guardianship if a person otherwise before the court appears to be under a disability. Venue is proper in the county in which the AIP resides, or is physically present.

A guardianship proceeding is commenced by the filing of a petition together with an order to show cause. It may be commenced by the AIP, a “distributee” (e.g., family member) or any person concerned with the welfare of the AIP. Upon the filing of the petition, the court is required to set a return date no more than 28 days from the date of the filing, and must designate in the order to show cause the name of the court evaluator. Both the petition and show cause order must be personally served on the AIP, the AIP’s spouse, siblings, and adult children.

The court evaluator, appointed from a list maintained by the court, is charged with the responsibility of (i) meeting with the AIP and explaining the nature and possible consequences of the proceeding; (ii) advising the AIP of the general powers and duties of a guardian; and (iii) determining whether the AIP desires legal counsel. The court must appoint counsel if the AIP desires counsel or contests the petition.

A determination of whether the appointment of a guardian is necessary is made only after a hearing at which any party may call witnesses and present evidence. The AIP has a right to be present at the hearing unless the AIP resides out of state or is “completely unable” to participate in the hearing. If the AIP is physically unable to come to the courthouse, the hearing must be conducted where the AIP resides.

If the petition is ultimately granted, fees for the court evaluator are paid by the estate of the AIP.  If the petition is denied, the court may require both the AIP and the petitioner to pay the court evaluator’s fee, in such proportion as the court deems just. If not indigent, the AIP must pay for his or her own legal counsel. However, if the petition is denied or dismissed, the court may in its discretion direct that the petitioner pay legal fees for the AIP.

Following a determination after hearing that the appointment of a guardian is necessary, the court will indicate in the record (i) the specific powers to be granted the guardian which constitute the least restrictive form of intervention consistent with the person’s functional disabilities; (ii) whether the guardian is necessary to provide for the personal needs of the AIP or to manage property and financial resources of the AIP; and (iii) the duration of the appointment.

Recent cases illustrate a trend to afford the AIP greater procedural and substantive due process rights. The Law Revision Commission Comments state that the court must consider “all the evidence including the information and independent observations provided by the court evaluator’s report as to the person’s condition, affairs and situation,” and cogently adds that the court should regard guardianship as a “last resort . . . deciding on a guardianship only when . . . the alternatives are not sufficient and reliable to meet the needs of the person.”

Courts appear extremely reluctant to permit care providers to utilize the guardianship process to effect changes in patient care against the patient’s wishes. Thus, in Matter of Louis Koch, N.Y.L.J. 11/29/99, a hospital sought the appointment of a guardian to effectuate the discharge of a patient who refused to leave. The court rejected the petition, finding the patient, although a “difficult personality,” had a “sharp mind” and continued to manage his finances even while hospitalized. Similarly, in Matter of Presbyterian Hospital, N.Y.L.J. 7/2/93, a hospital sought guardianship for an 80 year old blind woman who refused the hospital’s request to transfer her to a residential health care facility. Finding no justification for the appointment of a guardian, the court noted that the woman’s own arrangements in procuring assistance from neighbors demonstrated that the AIP appreciated her functional limitations.

Guardianship need not be permanent: upon restoration of capacity guardianship may cease. Thus, in In Re Penson, 735 N.Y.S.2d 51 (1st Dept. 2001), the former AIP was restored to capacity status upon a record indicating that he was living in Florida, understood his limitations and had sought the assistance of an attorney and financial professionals.

At one time, it was not clear whether guardianship was appropriate with respect to a minor with a mental disability which was expected to continue into adulthood. Although parents are a child’s natural guardians until they reach majority, they are not vested with legal authority to manage large estates. In In re Marmol, 940 N.Y.2d 969 (1996) the court found that although the guardianship law was intended to meet the needs of elderly persons, “nothing in the statute precludes its use for the young.” That court appointed the parent as guardian under Article 81.  Since Marmol, many courts have appointed Article 81 guardians for minors with disabilities, frequently to manage estates created by personal injury awards.