Article 81 guardians are often given broad powers over an Incapacitated Person’s life. One of the more challenging decisions many guardians face is deciding where their ward should live.  Is the current living situation suitable? Should the Incapacitated Person live at home? A nursing home?  Making the decision itself is just one piece of the puzzle. An article 81 guardian in New York must first consult the Order and Judgment appointing them guardian to ensure they have the power to decide where their ward lives, or in legal parlance, “choose the place of abode”. Guardians often need ..read more

I recently received written instructions from the New York County Clerk for filing a Commission. The entire process is in-person ..read more

A guardian in New York cannot force a person to take psychiatric medication against their will unless very strict legal processes are followed, which includes approval from a judge. This post discusses how to legally compel a person to take psychiatric medication both inside and outside the context of guardianship so that guardians in New York are aware of the tools at their disposal.  First, the guardian can petition the court to hold a Rivers hearing. In a Rivers hearing the judge will follow strict criteria to determine whether an incapacitated person can be required to take psychotrop ..read more

The Coalition to Assist Limited Capacity New Yorkers will present a three-part series of webinar panel discussions on navigating the ethical challenges that arise in the practice of Mental Hygiene Article 81 guardianship cases. The first webinar, which will focus on the petition and hearing, will take place on September 30, 2021 at 5:00pmEST. Panelists include: • Debi Korzenik, Senior Associate General Counsel at Mount Sinai Health System • Thomas C. Catapano, Assistant General Counsel, Office of Legal Affairs, NYC DSS, HRA, Department of Homeless Services • Peter J. Strauss, Senior Partner, P ..read more

If you’ve been appointed a guardian or conservator in a state other than New York, but are seeking to exercise your powers as guardian in New York State, you’ll need to register various papers in New York first (unless you petition anew). Otherwise, you won’t have the legal authority to exercise your powers as guardian in the Empire State.  I’m a big fan of checklists. This step-by-step guide makes the process easier. You must give “notice to the appointing court of an intent to register”. (See MHL § 83.35). There is no clear way to do this, but I suggest drafting a Notice in the same fo ..read more

Two United States Senators last week called on the heads of two federal agencies to provide data and information on adult guardianship and conservatorships, as the media directs national attention to the controversial conservatorship of pop superstar Britney Spears. In an open letter to Xavier Becerra, Secretary of the U.S. Department of Health and Human Services, and Merrick Garland, Attorney General of the U.S. Department of Justice, Senators Elizabeth Warren (D-MA) and Robert P. Casey, Jr. (D-PA) gave the Secretary and A.G. until July 14, 2021 to provide information on data systems in place ..read more

The Coalition to Assist Limited Capacity New Yorkers will host its second webinar event in a four part series on Thursday June 10, 2021 at 5:00pm EST The webinar event, entitled Article 81 Guardianships in New York: A Statewide Perspective, will explore “the common issues faced by practitioners across New York State” and “the unique local conditions faced within individual jurisdictions,” according to the Coalition,  a joint project of Project Guardianship and NYLAG’s LegalHealth Program. Project Guardianship will also be hosting a Virtual 5K Run, Walk, or Bike Challenge beginning in June ..read more

When commencing an adult guardianship proceeding in New York pursuant to Article 81 of the Mental Hygiene Law (“MHL”), the key document to be filed with the court is the petition. This document is essentially a detailed, formal, written request to have a guardian appointed.  In this blog post, I discuss drafting the petition in an MHL Article 81 guardianship proceeding, legal requirements, and best practices.  Required Contents of the Petition  The petition’s requirements are governed by MHL § 81.08. The statute sets forth what must be included in the petition. The required cont ..read more

The New York County Clerk’s Office is now, for the most part, closed on Wednesdays. But not necessarily for guardianship attorneys.  I recently attempted  (successfully) to have my court runner file an interim motion in an Article 81 proceeding in New York County on a Wednesday. It can be done! Per the New York County Clerk’s website:  “All NYCC in-person transactions are postponed on Wednesdays until further notice except in the case of an emergency which is defined herein as: Guardianship and Mental Hygiene emergency applications.  . . .” This means you can file your appl ..read more

I recently filed an Order to Show Cause in Kings County (Brooklyn) with a Petition commencing a guardianship proceeding pursuant to Article 81 of the Mental Hygiene Law. I used the same form and format as I have in the past, which had never been rejected (until now). On this particular occasion, the Clerk asked me to refile the Order to Show Cause with the service of process language matching the Sample Form provided by the court. The language in the Sample Form reads: ORDERED, that this Order to Show Cause, a copy of the Petition and the Notice of Proceeding upon which it is based, shall be ..read more