adult GUARDIANSHIP: article 81 proceedings

There is that saying we often hear: “Life happens.”

As well intentioned as people may be, they may not always think ahead and plan. This is true in life and is even more accurate when referring to estate planning. Sometimes, the unexpected and tragic occurs and life becomes more complicated that you could have imagined.

In the event there are no Advance Directives in existence at the time of an incapacity (or a suspected incapacity), a Guardianship, formally known as an “Article 81 Proceeding,” would need to be pursued in Supreme Court.

Any person can file an Article 81 petition: from a spouse, adult child, parent, sibling, relative to a hospital, nursing home and even a government agency. A little-known option—the allegedly incapacitated person or “AIP” (the legal term used to refer to this person prior to a judicial determination) can also file a petition on his or her own behalf.

The Court will need to determine that the AIP cannot complete activities of daily living and/or is mentally or neurologically impaired to the extent that he or she cannot make decisions.  Or, alternatively, that the decisions they are making are placing them in danger and the AIP is unable to recognize the latter.

The Judge, after a hearing, determines if another person needs to make decisions for the AIP and what types of decisions they will be.

The decision-making authority could cover the Incapacitated Person’s  (“IP”) personal needs and/or their property and is specifically tailored to allow the IP as much autonomy as possible considering that their individual limitations and circumstances.

Guardianships can be for a finite period of time, ordered for a specific period of time or to allow a transaction to be completed, or can be indefinite- until the Incapacitated Person dies.

Post guardianship hearing, there are annual accountings or reviews of the Guardianship to monitor the guardian and the incapacitated person and to also track the IPs income and expenses made on behalf of the IP by the guardian.

Veronica has represented petitioners, has been named counsel for the AIP, has been appointed Court Evaluator numerous times, and has also exercised the role of Guardian in these matters. She has worn every “hat” that can be worn in this type of proceeding.

She will be able to guide you every step of the way.