What happens at a Guardianship proceeding in New York
This is a general overview of what happens in a guardianship proceeding in New York .
WHAT IS GUARDIANSHIP?Guardianship is a legal arrangement where a Court gives a person the legal right to make decisions for another person who is unable to make decisions for themselves. Depending on the type of guardianship asked for and the person over whom guardianship is requested, the case is handled by the Family Court, the Supreme Court or the Surrogate's Court. Article 81 Proceedings are typically handled in Supreme Court. Article 17 and 17A proceedings are typically handled in Surrogate's Court.
WHEN DOES SOMEONE NEED A GUARDIAN?A person typically needs a guardian when they are not able to manage their property or make decisions on their own behalf.
Common situations and conditions when one may need a guardian are when an individual has a mental illness, mental disability, dementia, Alzheimer's disease, psychological and psychiatric disorder, bipolar/manic-depressive disorder, schizophrenia-paranoia, intellectual or developmental disabilities, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, comatose, cognitive impairment, or similar cause.
WHAT ARE THE TYPES OF GUARDIANSHIP IN NEW YORK?There are three types of guardianships.
Guardianship of an incapacitated adult pursuant to Article 81 of the Mental Hygiene Law
Guardianship of a Minor pursuant to Article 17 of the SCPA
Guardianship of an intellectually or developmentally disabled individual pursuant to Article 17A of the SCPA
WHAT ARE THE ROLES AND RESPONSIBILITIES OF A GUARDIAN?Generally the Guardian has to make decisions on behalf of the incapacitated person. The Guardian has to marshall assets, pay bills, decide where the incapacitated person should live, make medical decisions on behalf of the incapacitated person, and do all the things that the incapacitated person would normally have done prior to incapacity.
HOW IS A GUARDIANSHIP COMMENCED?The proceeding is initiated by filing an Order to Show Cause and Verified Petition with the Supreme Court in the County where the AIP resides. The Order to Show Cause will recite the powers requested, have spaces for the Judge to appoint a Court Evaluator, and if necessary, a temporary guardian and an attorney for the AIP. The Order to Show Cause will also set forth the date and time of the hearing and the powers that are requested. The Verified Petition typically sets forth the AIP's functional limitations and the reasons that the Petitioner believes that a Guardian is necessary. After the Judge signs the Order to Show Cause, the appropriate papers have to be distributed among the various parties.
WHAT HAPPENS AT THE GUARDIANSHIP HEARING?A guardianship proceeding can be contested or uncontested. Regardless of whether the hearing is contested or uncontested, the Petitioner has the burden of proving, by clear and convincing evidence, that the AIP needs a Guardian. The Petitioner usually goes first and present his case in chief. This may mean obtaining testimony from the Petitioner, the AIP's social worker, the AIP's friends, neighbors, and other family members.
If Counsel for the AIP has been appointed, then Counsel for the AIP will have an opportunity to ask questions.
After the Petitioner rests, if the petition is uncontested, then the Judge will typically ask the Court Evaluator to testify as to the Court Evaluator's observations. The Court Evaluator has probably met with all of the parties prior to the parties appearing in Court, and typically is able to render an opinion and recommendations about the situation, including who should be the guardian. (If the hearing is contested, then the Court Evaluator will typically not speak until after the Cross-Petitioner has had an opportunity to present his side of the story.)
The interesting thing about Article 81 guardianship is that testimony of the AIP's medical professional and treating physician is neither admissible nor required. This is rooted in the notion that Article 81 incapacity is based upon functional limitation and not on the reports of the AIP's medical team. In addition, allowing the AIP's medical team to testify raises issues about physician-patient privilege. That being said, independent medical testimony is permissible.
After all sides have presented their cases, then the Judge will set forth their findings on the record. The Judge will then ask that a party (usually the Petitioner) settle the final Order and Judgment. The person settling the Order on Notice should then get the transcript from the Court Reporter and should prepare a notice of settlement, with proposed Order and Judgment. If the Petitioner wants the Court to award fees from the funds of the Alleged Incapacitated Person, then the Petitioner should also submit his Affirmation of Legal Services to the Court.