By far the most common reason why guardianship proceedings are initiated is that a person who is unable to work cannot pay their bills due to mental incapacity. A court-appointed guardian may remedy this situation by being given the power to confiscate property, pay bills, make investments or exercise a financial right that the incapacitated person could exercise if that incapacitated person were able to do so. At the end of the guardianship, the tutor must submit a final report summarizing all the activities of the tutor throughout the duration of the guardianship. According to the Mental Hygiene Act 81.06, guardianship proceedings can be initiated in New York by: Sometimes unscrupulous individuals take advantage of people with disabilities by fraudulently inciting them to give their money. As part of a guardianship process, a court may freeze bank accounts. A court may appoint a provisional guardian during the pending guardianship proceedings to ensure that no one other than the person designated by the court has access to the property of the incapacitated person. A court may allow a guardian to initiate expedited proceedings to recover stolen property. Section 81 of the New York Mental Hygiene Act authorizes a court to appoint a guardian to manage the personal and/or financial affairs of a person who cannot take care of himself or herself due to disability. Not all Guardians under Section 81 («Guardians») in New York have the same powers. Guardianship orders are specifically tailored to ensure that the powers granted to the guardian are those specifically necessary to meet the needs of the incapacitated person. For example, a person may not be able to pay their bills or manage their money, but they may have the ability to make health care decisions. In such a case, a court could appoint a guardian with limited powers of financial management.
In order for a guardian to be appointed, a person called a petitioner must apply to the court to appoint a guardian. Almost anyone can be the petitioner. Once the application has been submitted to the court, the court usually appoints a so-called judicial assessor. It is the responsibility of the assessor of the court to conduct an investigation and provide the court with a report on the facts and circumstances of the case. The court assessor usually comments on whether or not the appointment of a guardian is necessary. In some cases, the court also appoints a lawyer to represent the person with a disability. When the application is made, the court also sets a hearing date and orders that the notification of the application be forwarded to the immediate family members. At the hearing, the applicant must provide the court with clear and convincing evidence that the person with a disability is unable to manage certain aspects of his or her personal and/or financial affairs. The assessor submits his report to the hearing. Anyone who has filed opposition documents will also have the opportunity to be heard. After the hearing, the court usually makes a decision. Guardianship proceedings under section 81 are initiated by the filing of a justification order and a verified application with the Supreme Court of the district where the allegedly incapable person resides («AIP»).
The justification order recites the requested powers, has rooms for the judge to appoint an assessor and, if necessary, a temporary guardian and a lawyer for the AIP. The cause order also determines the date and time of the hearing and the powers sought. The audited petition usually sets out the functional limitations of the PIA and the reasons why the petitioner believes a guardian is needed. Once the judge has signed the add-on evidence order, the relevant documents must be distributed among the different parties. If the applicant rests after rest, if the application is not contested, the judge will usually ask the court assessor to testify about the court assessor`s remarks. For people with disabilities who have significant wealth, it may be advantageous for estate tax reasons to make gifts to family members during their lifetime. A guardian may be authorized by a court to make donations to reduce inheritance tax. A copy of all documents will be sent to the IAFF in person. The court assessor will also receive a copy of the documents. If the court appoints a lawyer for the AIP, the AIP lawyer will also receive a copy of all documents. The applicant, the judicial assessor, the AIP and the lawyer of the AIP are the only «parties» to the proceedings.
The relevant family members and relatives of the AIP are «interested persons» but not necessarily parties and are not immediately entitled to a complete set of all documents. These «interested persons» will only receive a notice of proceeding and a copy of the cause order. In order to obtain a complete copy of the application, these «interested persons» must generally appear in the proceedings and file a counterclaim to be appointed guardians or seek other remedies. In other cases where the incapacity for work is comprehensive, the powers granted by the court could include not only a full range of financial management powers, but also the power to make decisions in the health care system and the power to determine where the person with a disability should reside (including placement in nursing homes if the person with a disability cannot reasonably be maintained at the house). Sometimes family members or acquaintances physically abuse a person with a disability. A guardian may be empowered to take steps to end physical violence. These measures may include injunctions requiring the offender to refrain from certain activities, the implementation of a home care plan, placement in dormitories, issuance of a protection order, or granting the power to apply to the family court for a protection order. Sometimes people with disabilities do not provide themselves with proper medical care. They become unable to take care of their basic activities of daily living such as grooming, dressing, bathing, going to the toilet and getting food. Sometimes large amounts of debris accumulate in the homes of people with disabilities, and a guardian may be empowered to remedy such situations.
The power granted by the court includes the power to provide home care, the power to clean an apartment with difficulty and, where applicable, the power to place the person with a disability in an appropriate care facility. Usually, applicants from the person with a disability, the applicant and family members are preferred when the court decides who should be the guardian. When there is disagreement between family members about who should serve as a guardian, the court often appoints an independent guardian whose name is taken from a list maintained by the court.  There is a separate procedure that is used when a minor who does not suffer from a mental or physical disability needs a guardian. In addition, there is another procedure that can also be used if a person is unable to work due to an intellectual disability or intellectual disability, in addition, the person who wishes to serve as a guardian must be able to obtain a bond in an amount determined by the court. A deposit is an insurance policy paid from the assets of the incapacitated person and insures the disabled person against theft or other misconduct by the guardian. There is no standard rule regarding the amount of a bond, but in many courts, the obligation is usually equal to the total amount of assets of the incapacitated person plus two years of income. If the family`s candidate for the position of guardian cannot obtain security for credit reasons, the court may appoint an independent guardian.
Usually, the petitioner introduces himself first and presents his case in chief. This may mean obtaining testimony from the petitioner, the IAFF social worker, friends, neighbours and other IAFF family members. If there is no family member or friend willing to serve as a guardian, the court appoints an independent guardian. A guardian must visit the disabled person at least four times a year. If the lawyer has been appointed for the PIA, he or she has the opportunity to ask questions. A person who wishes to serve as a tutor must take a six-hour course explaining the tutor`s duties. Some of the most important tasks are listed below. This section is provided by the attorney for educational purposes only, to give you general information and a general understanding of the law, and not to provide specific legal advice. By using this website, you agree that there is no client relationship between you and the lawyer. .