Winter 2010 Newsletter
NOTE: The names and
locations below have been changed to protect their privacy.
The Mental Hygiene Laws
In 1992, the Mental Hygiene
Laws were enacted by the New York State Legislature. The laws
were designed to outline the framework for the entire
guardianship process, start to finish; this type of case is
called an "Article 81." The legislature intended to create the
least restrictive, most customized and respectful intervention
possible, based on all the facts and circumstances of a
While it would appear that a
family member of an alleged incapacitated person should receive
preferential consideration in an Article 81 case, they are still
subjected to scrutiny by the court. There is no guarantee that a
child or sibling will be appointed guardian for a family member,
just by virtue of the family relationship. On occasion, I have
observed that a family member can be subjected to even greater
scrutiny than a stranger.
Powers of Attorney and
Health Care Proxies
course, there are no guarantees that the authority of a health
care or property management agent, designated by written proxy
or power of attorney, will not be revoked and an entirely
different guardian appointed, if the court decides that such a
choice is in an alleged incapacitated person's best interests.
Where the court determines that a health care agent and attorney
in fact have been properly appointed, it shall refrain from
appointing guardians, however. The Public Health Law provides,
in part, that health care decisions by health care agents have
priority over decisions made by anyone else, save for a
The Bernini Family
Now, let us presume for a moment, that the baby-boomer's mother
has been placed in a facility by a hospital. Then, the facility
institutes a proceeding to have a guardian for the personal
needs and property management appointed for the incapacitated
mother who resides in its facility. The boomer stands by
stoically, in a vain attempt to comprehend what has happened.
That is what happened to the Bernini family, who made quite a
lot of money in the real estate market in the 1970's and 1980's.
When Mr. Bernini died, both his widow and adult son struggled.
They were extremely secretive, so that no one in the extended
family realized that Mrs. Bernini had Alzheimer's and that her
son was not capable of taking care of either one of them. When
Mrs. Bernini broke her hip at 91 years of age, it became
apparent that she could not return home, so she was placed in a
facility, and the facility instituted a guardianship proceeding.
The son was incapable of
objecting or cross-moving for relief, so an agency was
appointed, and shortly thereafter, in marshalling Mrs. Bernini's
assets, the guardian re-titled Mrs. Bernini's only resource, an
annuity, from Mrs. Bernini's name, to the agency's name AS
BENEFICIARY. Then Mrs. Bernini died. It is elementary that the
re-titling of guardianship assets should show the guardian's
name as "guardian," and not as "beneficiary."
Once we realized what had
happened, it required letters, telephone calls and threats of
filing a complaint with the local District Attorney-over the
course of many months-before the appropriate corrections were
made, and the money released to the son, the rightful
beneficiary. Unfortunately, there is abuse and fraud, and we
practitioners must be vigilant in watching for such abuse.
Occasionally, an errant
guardian appears in newspaper headlines, buy that is rare when
one considers how many applications are granted each year. In
addition, guardians must post a bond to insure the incapacitated
person's assets, so that in the event of malfeasance, the
incapacitated person's assets are protected. It is a shame that
the failure to execute a health care proxy and durable power of
attorney results in such needless costs and inconvenience.
Moreover, the result achieved at the hearing may not remedy the
And after the Smoke
How well does the guardianship system work? I believe that
unless one has absolutely no option, the commencement of a
guardianship proceeding should be avoided, if possible, due to
the difficulty, unpredictability and expense. Clients are
frequently unhappy, but there is little option for the
individual who fails to adequately plan, especially where the
incapacitated person has assets. Therefore, we strongly
recommend that clients include comprehensive durable powers of
attorney and health care proxies in their estate plans.
Excerpted from Kordes, Guardianship Concerns in New York State,
Springer Publishing Co. New York, New York, 2009.
To read the entire article,
our web site.
The above list is for general
information purposes only. It is not intended to constitute
individual legal advice or a specific recommendation to any
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