Article 81 Guardianships

An Article 81 Guardianship is a judicial process before the Supreme Court under New York State Mental Hygiene Law for persons who lack mental ability to implement judgements or whose judgements are insufficient. It is a judicial judgment made in 1993 that an individual is incapable based on clear and compelling evidence. A person may be unable to pay bills or manage their finances but may be competent to make healthcare decisions. In such a scenario, a court may appoint a guardian with solely financial management responsibilities.

article-81-guardianships

Who Can Be Appointed as a Guardian ?

When deciding who should be the guardian, the court usually gives precedence to nominations of the disabled individual, the petitioner, and family members. If family members disagree on who should serve as guardian, the court will usually select an independent guardian, whose name will be drawn from a list kept by the court. Such a person must be 18 years of age or older. 

Furthermore, in order to act as guardian, the individual must be able to secure a bond in an amount determined by the court. A bond is an insurance plan paid for with the incompetent person's assets that protects the incapacitated person from theft or other misbehavior by the guardian. 

What is Guardianship Over a Person? 

Guardianship over the Person empowers a guardian to make all daily choices for the individual, including where the individual will reside, who will provide personal care and support, and medical decisions.

What is Guardianship Over Property? 

Guardianship over Property empowers the guardian to make property choices for the individual. The guardian's power will be determined by the individual's capacity and the size of their possessions.

The Duties and Responsibilities of a Guardian

The following are the general duties of an Article 81 guardian: 

  1. The guardian shall exercise only those powers permitted by the court order
  2. A guardian must exercise the utmost care and skill when acting for the benefit of the AIP
  3. A guardian must demonstrate the utmost trust, devotion, and fidelity to the AIP
  4. A guardian must file initial and final reports

A person who desires to serve as a guardian must first pass a six-hour training that teaches the guardian's responsibilities. The following are some of the more significant tasks. Within 90 days of being appointed as guardian, the guardian must file his or her first report. The initial report generally includes a brief overview of the incapacitated person's condition as well as a list of the incapacitated person's assets.

The guardian must produce an annual report with the court by May 31 of each year, including all revenue and disbursements for the preceding calendar year. At the end of the guardianship, the guardian must produce a final report that outlines all of the guardian's activities for the duration of the guardianship. At least four times each year, a guardian must also visit the disabled individual. 

The Process in Which a Guardianship is Appointed

Filing an Order to Show Cause and Petition in the Supreme Court and paying a fee to get an Index number initiates this sort of action. When a petition is filed with the court, the court will usually appoint what is known as a court evaluator. The court evaluator's role is to conduct an investigation and give the court a report on the contents and circumstances of the case. Normally, the court evaluator will give a review on whether or not a guardian is required. The court may also appoint a lawyer to represent the disabled individual in specific situations. When the petition is filed, the court also sets a hearing date and requires that close family members be notified of the petition's filing. The petitioner must show the court with clear and compelling proof that the disabled person is incapable of handling certain areas of their personal and/or financial affairs during the hearing. At the hearing, the court evaluator provides its decision.

How Long Does a Guardianship Last?

A guardian appointed under Article 81 stays in office until any of the following events occurs:

  1. he or she is removed as guardian for failure to obey with any court order, or for improper conduct, or for any other reason that the court deems just
  2. the AIP has gained the ability to perform some or all of the personal needs and/or property management functions that the guardian was authorized to perform
  3. the AIP passes away

Do I Need an Attorney?

​​Yes. The legislation requires that certain standards be observed, such as the form of the papers, service of process, notifications, and so on. You will need an attorney to correctly write paperwork for this procedure in order to guarantee that the regulations are followed.

You can speak with an estate planning professional at the Law Office of Inna Fershyten who concentrates in guardianship to help you file for guardianship for your loved one. Please contact us at (718) 333-2395.

What Are a Senior Guardian’s Responsibilities?

Coming to terms with a loved one’s deteriorating mental health is never easy. However, if their mental health reaches a point where they are unable to make decisions, it may be necessary to look into obtaining guardianship of their care. A senior guardian is granted legal authority by a court to make decisions for their loved one who is no longer capable to do so themselves. An individual that a court decides is no longer able to care for themselves is called a ward. A senior guardian oversees a ward’s daily care or financial transactions, and sometimes both. If you are considering obtaining guardianship, it is important to become informed of both the required time commitment and emotional demands. It is crucial that you also understand the constraints this may place on your newly evolved relationship due to the necessary limitations placed on the ward’s independence.

Senior Guardian Responsibilities

Types of Guardianship and Guardian Responsibilities

When an individual is deemed mentally incompetent in a legal setting, they are named a ward of the state. A senior guardian, often a loved one, is then granted the power to oversee their care. Guardianship is divided into two categories that deal with different aspects of the individual's needs. The first category allows the guardian to oversee the ward’s daily care. On the other hand, the second category grants the guardian power to oversee the ward’s personal and home property. There are also instances in which the guardian is granted full oversight over both; this type of guardianship is known as full or plenary guardianship. This oversight may be granted to one guardian or split amongst two individuals according to daily care and property management. They then must work together closely when making important decisions concerning an overlap of the two.

Guardianship of the Person

Guardianship of the person administers oversight of the ward’s daily life: medical, residential, and social decisions. If appointed as a guardian that presides over these decisions, the responsibilities may include: 

  • Release of confidential information
  • Oversight of residence
  • Determination of residence location
  • Applying for government/medical benefits
  • Providing consent for medical treatments
  • Making end–of–life care decisions
  • Making sure their care is managed in the the least restrictive way possible
  • Reporting to court at least once a year

Guardianship of Property 

This guardian is also known as a guardian of the estate: someone who manages the ward’s finances and property. First, an appraisal of the ward’s income, assets, and debts, must be assessed. Then, the estimate must be filed with the court once a legal guardian is appointed. The guardian must always keep the ward’s funds in a separate account from their own and cannot allocate these assets/income toward their own needs.

A guardian of the property may have the following responsibilities for a ward:

  • Deciding how finances are handled;
  • Applying for and managing government benefits 
  • Making investment decisions;
  • Paying bills, rent, and taxes
  • Keeping detailed records of all income and expenditures;
  • Requesting prior court approval for the sale, donation, transfer or mortgage of their property
  • Reporting to court at least once a year with a complete account of finances

** Sometimes, when a guardian applies for and manages government benefits on behalf of another individual, a power of attorney is required. An elder law attorney can professionally and adequately prepare a power of attorney that proves a guardian has the legal right to act on behalf of another individual. A POA guarantees an agent the right to act on behalf of the principal. 

Accepting the Role of Guardian

There is no denying that accepting guardianship of a loved one is an extremely demanding emotional process and is time consuming. When a guardian obtains oversight of a ward, they are agreeing to surrender an individual’s independence to their care. This is difficult to come to terms with and often a rigorous process determining when to allow independence and when to place constraints on it. It is also important to understand that every case is unique and what may work for one ward/guardian relationship, may not work for another. A guardian agrees to take on the role of protecting their ward from abuse, exploitation, and neglect both from themselves and their environment. Before accepting this decisive role, it is important to voice your concerns with other family members. It is crucial that you are confident in your answers to two questions: Do I have the time and emotional strength to qualify for guardianship of this individual? Is there someone else I know that would be a better fit? Once you have the answers to these questions, it is important to obtain professional legal advice and elder law administration.

For all of your elder law planning needs, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to receive help in obtaining guardianship.