Article 81 Guardianships are most suitable for the elderly and victims of trauma. Article 81 guardianship is sometimes also used for the mentally ill and developmentally disabled.
There may come a time when an elderly or disabled loved one can no longer manage their own affairs such as paying bills, banking, managing investments and taking care of their day-to-day living needs. If your relative has been diagnosed with a serious illness, has suffered a stroke, is disabled or has dementia or Alzheimer’s and is showing signs of memory loss, confusion and forgetfulness, it may be time to establish an Article 81 guardianship for your relative. Since the New York laws are complex, the expertise of a New York guardianship attorney is required.
Establishing an Article 81 Guardianship
To establish an Article 81 guardianship in the State of New York, a person needs to file a petition and other documents in the appropriate court in the county where the alleged incapacitated person lives.
After the petition is filed and everyone involved is formally notified, there will be a court hearing, where the judge will decide what the next steps are going to be. The more complicated or contested the guardianship, the more hearings there will be. For an easy uncontested proceeding, one hearing is usually sufficient.
Guardianships under Article 81 of the Mental Health Law (“MHL Article 81”).
17-A vs. Article 81: SCPA Article 17-A only authorizes a guardian for an individual who is. Article 81 guardianship is not suitable for special needs or developmentally disabled individuals. There is a different type of guardianship for that, it’s called SCPA Article 17-A guardianship. MHL Article 81 guardianships are narrowly tailored and therefore less powerful, giving guardians only the powers that are absolutely necessary for the ward’s needs.
The guardian has a duty to look out for the best interest of the ward. Where the guardianship is of the property, the guardian must submit reports to the court at regular intervals.
The Role of the Article 81 Guardianship Attorneys
The Petitioner’s Article 81 guardianship lawyer files the petition to the court and represents the person who filed it. Article 81 guardianship petitions are usually filed by concerned relatives or the nursing home or long-term care facility where the person in question resides. Their lawyer advances their view or position that a certain guardian should be appointed. If you are planning to file a guardianship petition and need a lawyer, Albert Goodwin, Esq. has more than a decade of experience in guardianships. He can be reached at (212) 233-1233.
Guardianship lawyers perform many important functions. In most proceedings, at least four lawyers are involved, if you court the judge, sometimes many more. These attorneys ensure that cases function smoothly and the rights of everyone involved are protected.
Who Can Be an Article 81 Guardian
New York law requires that the guardian be at least 18 years of age or older and also a legal resident or U.S. citizen. Typically, a guardian of an elderly person is usually an immediate adult family member such as a son, daughter, grandchild, niece, nephew or sibling.
However, New York courts also have the jurisdiction to appoint a qualified non-related person to act as an Article 81 guardian where there is no immediate family member available. This person is usually an attorney, selected from a list maintained by the court. A guardian can be appointed as both the guardian of the person and the property or there can be two separate guardians appointed, one as guardian of the person, and one as guardian of the property. For instance, a son or daughter may be appointed as guardian of the person, but a financial advisor such as a CPA or accountant or legal advisor such as a lawyer may be appointed guardian of the property.
If the incapacitated person’s relatives have a disagreement over who should be appointed guardian, then the court will appoint a neutral non-relative guardian.
Duties of a Guardian
The guardian of the person takes care of the person’s living needs, such as grooming, bathing, meals, house cleaning, grocery shopping and healthcare needs, including medical, dental and nursing, transportation and any other personal day-to-day needs. The guardian of the property takes care of paying bills, banking, property management, collecting rents, managing the person’s business and financial accounts, filing income tax returns, obtaining government benefits such as social security, VA, Medicaid, SSI or Medicare, and any other government benefits. Here is more about the responsibilities of a guardian.
Determining when to establish an Article 81 guardianship is a family decision. The legalities and requirements of establishing one should be discussed with an experienced New York attorney. The attorney can prepare and file the required documents with the court and attend court hearings as well as assist with any tax matters.
Here is more information about New York guardianships:
Is it time to start a guardianship?
How to defend against a guardianship
Preventing financial abuse of seniors
What type of guardianship is right for my situation?
The responsibilities of a guardian
What does a guardian of a person do?
What does a guardian of property do?
How much does a guardian get in commissions?
If you wish to speak to a New York Article 81 guardianship attorney with over a decade of experience representing clients in Manhattan, Brooklyn, Bronx, Queens, Staten Island, Suffolk County, Nassau County and Westchester County, call Albert Goodwin, Esq. at (212) 233-1233.
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