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Article 81 Guardianship

While much of what is discussed in our newsletters centers around families that are separating, and how to handle the various issues related to that unfortunate circumstance, our department also handles other matters, such as adoptions, Article 17/17-a Guardianships (for the developmentally disabled) and Article 81 Guardianships (for disabled adults).

Article 81 Guardianships (established by Article 81 of the Mental Hygiene Law) deal with appointing a third party to handle personal and/or property decisions for a disabled adult when they do not have appropriate advance directives in place (i.e. Health Care Proxy and/or Power of Attorney).  The majority of these relate to aging relatives suffering from dementia or disabled children who have reached the age of majority.  Occasionally they will also be necessary for a person who has suffered a debilitating illness or injury without having advance directives in place.

Article 81 guardianship proceedings are commenced in Supreme Court, in the county in which the incapacitated person resides.  The pleadings filed set forth the disability of the alleged incapacitated person, as well as their assets, income and liabilities, health insurance provider information, prognosis and requested powers.

The beauty of the Article 81 guardianship is that it is extremely flexible and can be tailored to meet each person’s specific needs.  The powers granted to the guardian are only those necessary to meet the needs of the incapacitated person, while allowing them as much independence as possible.  As a person’s disability improves or worsens, the guardian’s powers can be decreased or increased as appropriate.

Unlike a power of attorney or health care proxy, the guardian is also subject to court oversight, including the requirement that the guardian file annual accountings which are reviewed by an accounts examiner for that county.

Article 81 guardianships are expedited proceedings, and are required to be heard within approximately twenty-eight (28) days from the date the initiating papers are reviewed by the court.  The assigned judge will also appoint a Court Evaluator who is charged with speaking with all parties involved and provide a report and general overview to the court of the circumstances of a particular case.  The court will use this report to inform its decision.  The party applying for appointment of the guardian can either require that a particular person be appointed, or request that the court appoint a neutral third party as guardian, who will ordinarily be an attorney.  The guardian, once appointed, can then begin handling the affairs and decisions they are charged with.

While no family hopes to find itself in this position, these proceedings can assist them in providing assistance and necessary services to the family member in need.  We would be happy to provide assistance and advice to your family should you require it.

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