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The appointment of a Guardian for personal needs or property management is provided for by Article 81 of the Mental Hygiene Law. This statute contains the numerous provisions regarding the procedure and substantive law for a New York Guardianship. The New York Probate Lawyer Blog has published many articles regarding Guardianship issues.
As a recap, a Guardianship is appropriate when a person is found to be incapacitated. Incapacity is viewed in a functional setting dealing with a person’s ability to handle his various activities of daily living. These activities include activities such as taking care of financial affairs, personal hygiene, shopping, and attending to health care and providing for meals. When a person cannot functionally care for themselves, and lacks the insight as to their welfare and would be at risk if a Guardian is not appointed, then a Court will see that a Guardian is needed.
When a Guardianship petition is filed, the Court usually appoints a Court Evaluator to investigate the case, and sometimes, an attorney to represent the interests of the alleged incapacitated person (“AIP”). Article 81 requires that clear and convincing evidence be presented before a Guardian is appointed. This is due to the inherent removal of certain liberties which a Guardianship requires. The least restrictive form of intervention is allowed and the AIP’s interests are of paramount importance.
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