7/10/2016 The Local District as Article 81 Guardian Mark E. Maves, Esq. First Deputy County Attorney Monroe County Law Department July 19, 2016 What is an “Article 81 Guardianship? 1
7/10/2016 Mental Hygiene Law Article 81 • Enacted in 1992, went into effect in 1993 • Replaced MHL Art. 77 (conservators of conservatees) and MHL Art. 78 (committees of incompetents) • Article 81 permits the court to appoint a guardian with personal needs powers, property management powers, or both. Mental Hygiene Law Article 81 • Requires the court to find either that the alleged incapacitated person agrees to the appointment or that they lack the capacity to provide for their own personal needs and/or property management, cannot adequately understand and appreciate the nature and consequences of that inability, and are therefore likely to suffer harm. 2
7/10/2016 How do you get to become a Guardian? By court order, after the court has made findings pursuant to MHL §81.15 An example of an order is included in the materials If your Commissioner is appointed guardian, does he/she have to perform all of the guardian functions? 3
7/10/2016 No. In re Sutkowy , 270 Ad2d 943 (4 th Dept., 2000), the Court held that the Commissioner can delegate guardianship responsibilities to local district staff, although he remains responsible if the staff fails to discharge the responsibilities. General Duties‐ see MHL §81.20: Exercise only those powers authorized by court order 4
7/10/2016 General Duties‐ see MHL §81.20: Exercise the utmost care and diligence when acting on behalf of IP General Duties‐ see MHL §81.20: Exhibit the utmost degree of trust, loyalty and fidelity in relation to IP 5
7/10/2016 General Duties‐ see MHL §81.20: File an initial and annual report as per 81.30 and 81.31 General Duties‐ see MHL §81.20: Visit the IP not less than four times per year or more frequently as per court order 6
7/10/2016 General Duties‐ see MHL §81.20: A guardian given property management powers shall: • Afford the IP the greatest amount of independence and self‐determination with respect to property management in light of the IP’s functional level, understanding and appreciation of their functional limitations, and personal wishes, preferences and desires with regard to managing their ADL’s General Duties‐ see MHL §81.20: • Preserve, protect and account for the property and financial resources faithfully • Determine whether the IP executed a will, locate same and determine the appropriate person to notify at the IP’s death • Use the property to support the IP and any dependents • At the termination of the appointment, deliver the property to the person legally entitled to it 7
7/10/2016 General Duties‐ see MHL §81.20: • File with the county recording officer where the IP is possessed of real property an acknowledged statement to be recorded identifying the property, the tax map numbers, the date of the adjudication of the IP and the name, address and phone # of the guardian. • All other duties required by law General Duties‐ see MHL §81.20: Afford the IP the greatest amount of independence and self‐determination with respect to personal needs in light of that person’s functional level, understanding and appreciation of that person’s functional limitations, and personal wishes, preferences and desires with regard to managing the activities of daily living. 8
7/10/2016 When does the guardianship become effective? When does the guardianship become effective? Temporary guardian‐ MHL §81.23(a)(3)‐ upon the issuance of the commission of temporary guardianship. 9
7/10/2016 When does the guardianship become effective? “Permanent” guardian‐ MHL §81.26 & §81.27‐ upon the filing of the designation of the clerk to receive process and issuance of commission. Designation of Clerk to Receive Process • MHL §81.26‐ designates the clerk of the court to receive process for the guardian if the guardian cannot, with due diligence, be served within the state. • We combine a consent to act as guardian with ours‐ see example in the materials. 10
7/10/2016 What is a “commission?” The Commission sets forth the powers of the guardian – See example attached in the materials Commission MHL §81.27 requires that the Commission must only have the powers listed in it that were granted by the Order. 11
7/10/2016 Powers of a Personal Needs Guardian Contained in MHL §81.22 Powers of a Personal Needs Guardian The guardian’s powers under an Art. 81 guardianship are limited to those that are granted in the Order. The following is the list of the powers set forth in MHL §81.22(a) that the Court could grant to a personal needs guardian. 12
7/10/2016 Powers of a Personal Needs Guardian 1. Determine who shall provide personal care or assistance Powers of a Personal Needs Guardian 2. make decisions regarding social environment and other social aspects of the life of the incapacitated person 13
7/10/2016 Powers of a Personal Needs Guardian 3. determine whether the incapacitated person should travel Powers of a Personal Needs Guardian 4. determine whether the incapacitated person should possess a license to drive 14
7/10/2016 Powers of a Personal Needs Guardian 5. authorize access to or release of confidential records Powers of a Personal Needs Guardian 6. make decisions regarding education 15
7/10/2016 Powers of a Personal Needs Guardian 7. apply for government and private benefits Powers of a Personal Needs Guardian 8. (i) for decisions in hospitals as defined by subdivision eighteen of section twenty‐nine hundred ninety‐four‐a of the public health law, act as the patient’s surrogate pursuant to and subject to article twenty‐nine‐CC of the public health law, and (ii) in all other circumstances, to consent to or refuse generally accepted routine or major medical or dental treatment, subject to the decision‐making standard in subdivision four of section twenty‐nine hundred ninety‐four‐d of the public health law 16
7/10/2016 Powers of a Personal Needs Guardian 9. choose the place of abode; the choice of abode must be consistent with the findings under section 81.15 of this article, the existence of and availability of family, friends and social services in the community, the care, comfort and maintenance, and where appropriate, rehabilitation of the incapacitated person, the needs of those with whom the incapacitated person resides; placement of the incapacitated person in a nursing home or residential care facility as those terms are defined in section two thousand eight hundred one of the public health law, or other similar facility shall not be authorized without the consent of the incapacitated person so long as it is reasonable under the circumstances to maintain the incapacitated person in the community, preferably in the home of the incapacitated person. Powers of a Personal Needs Guardian The Court may also add powers that are not contained in MHL §81.22(a). These powers, like those enumerated above, should be tailored to the needs of the particular IP. 17
7/10/2016 Three Things a Personal Needs Guardian Cannot Do 1. Consent to voluntary formal or informal admission of the IP to a mental hygiene facility under article 9 or 15 of MHL or to a chemical dependence facility under article 22. See MHL § 81.22(b)(1) Three Things a Personal Needs Guardian Cannot Do 2. Revoke any appointment or delegation made by the IP pursuant to sections 5‐1501, 5‐ 1601 and 5‐1602 of the General Obligations Law, (power of attorney), sections 2965 and 2981 of the Public Health Law (Health Care Proxy). See MHL 81.22(b)(2) 18
7/10/2016 What do you do if there is a POA that needs revoking? Ask the Court to revoke the POA‐ although now a guardian is among those who can bring a special proceeding pursuant to General Obligations Law §5‐1510 to compel production of the POA and an accounting. Three Things a Personal Needs Guardian Cannot Do 3. Consent to the involuntary administration of psychiatric medication to the IP. See In re Rhodanna C.B. , 36 AD3d 106 (2 nd Dept., 2006). 19
7/10/2016 Property Management Powers MHL §81.21 Property Management Powers 1. make gifts 2. provide support for persons dependent upon the incapacitated person for support, whether or not the incapacitated person is legally obligated to provide that support 3. convey or release contingent and expectant interests in property, including marital property rights and any right of survivorship incidental to joint tenancy or tenancy by the entirety 20
7/10/2016 Property Management Powers 4. exercise or release powers held by the incapacitated person as trustee, personal representative, guardian for minor, guardian, or donee of a power of appointment; 5. enter into contracts; 6. create revocable or irrevocable trusts of property of the estate which may extend beyond the incapacity or life of the incapacitated person; Property Management Powers 7. exercise options of the incapacitated person to purchase securities or other property; 8. exercise rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value; 9. exercise any right to an elective share in the estate of the incapacitated person's deceased spouse; 21
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