Article 81 of the Mental Hygiene Law: The Basics of Guardianship Proceedings
Proceedings to appoint a guardian to act for an incapacitated person in New York are governed by Article 81 of the Mental Hygiene Law.[1] This article provides basic information about these proceedings and pointers for attorneys beginning to practice in this area.
Let's start with the cast of characters and a brief description of the proceeding. The subject of a guardianship proceeding is the "alleged incapacitated person," referred to by judges, court personnel and Article 81 practitioners as "the AIP." An Article 81 proceeding is initiated either by a "private" party or a "facility." Generally, in private proceedings, a family member or other concerned individual[2] brings the proceeding to avert physical harm to an AIP or theft or waste of the AIP's property. The AIP is generally living in the community, either alone or with others, but is having difficulties that come to the attention of a friend or relative. In facility proceedings, the administrator of a facility (such as a hospital or a skilled nursing facility) brings the proceeding, for a variety or reasons, to have a guardian appointed for an AIP who is a patient, often a patient who was admitted under dire circumstances.[3] For example, the facility may believe that the AIP lacks capacity to make medical decisions, the AIP may be agitating for discharge to unsafe surroundings, or the AIP may be unwilling or unable to apply for government or private health benefits to pay for his care in that facility or in another facility to which he could be discharged safely.[4] Guardianships are either "consent" or "contested" guardianships, depending on the AIP's response.
An Article 81 proceeding is initiated by filing a verified petition with an order to show cause. The draft order must contain a statutory notice relating to the nature of the proceeding, the AIP's right to object to the disclosure of medical records, and his right to counsel.[5] The statute requires the hearing to be set no more than 28 days from the date the order to show cause is signed.[6] The court in almost every case must appoint a court evaluator[7] and, in some circumstances, must appoint counsel for the AIP.[8] If it appears from the petition that there is a likelihood of harm to an AIP between the issuance of the order to show cause and the return date, the court may either appoint a temporary guardian with specified powers when issuing the order to show cause, or it may set a very short return date and consider the request for a temporary guardian in advance of the final hearing date.[9] If a temporary guardian is appointed for an AIP who is not represented by counsel, the court must also appoint counsel for the AIP.[10]
The petition must identify all of the interested parties entitled to notice.[11] The order to show cause will list the interested parties to be served and the deadlines and methods of service. Changes to the law in late 2004 protect an AIP's privacy by providing that most interested parties receive only the signed and filed order to show cause and a notice of proceeding that petitioner's counsel prepares -- most interested parties do not receive the verified petition itself. Though preferable, the petition need not identify or nominate a guardian[12] -- the court will appoint a suitable person or agency.[13] The RJI need not identify any prior Mental Health Part proceedings involving the AIP as related cases.
The "court evaluator"[14] plays an essential role in an Article 81 proceeding -- he or she conducts an impartial inquiry into the AIP's circumstances and assets and submits a written report to the court on or before the return date.[15] This process is designed to assist the court in ruling on preliminary matters, such as whether the AIP can participate meaningfully in the proceeding or travel safely to the courthouse for a hearing, and also in assessing the AIP's capacity and need for a guardian.[16]
Petitioner's counsel should contact the court evaluator shortly after serving the papers and ask the evaluator to notify counsel and the court before the return date if the evaluator determines any of the following: the AIP does not consent to the appointment of a guardian, the AIP demands counsel, the AIP cannot participate meaningfully in the proceeding, the AIP cannot travel safely to the courthouse or the AIP poses a flight risk. In such cases, the court may issue an order appointing counsel and setting a new hearing date, or it may select a new date for a bedside hearing. Alerting the court to these matters will often spare counsel and various interested parties an unnecessary trip to the courthouse.
The court evaluator generally shares his report with petitioner's counsel the day before the hearing via facsimile, but he is not required to do so. He may submit his report to the court and ask the court's preference regarding pre-hearing disclosure to petitioner's counsel. If counsel for the petitioner does not get the report prior to the hearing, he should bring this to the court's attention early in the hearing and should request a short recess to review the report.
Incapacity Based on Ability to Manage Activities of Daily Living
A guardian will be appointed if the court finds that the appointment is necessary to provide for the personal needs of the AIP or to manage the AIP's property, and further finds that the AIP either consents to the appointment or is "incapacitated." [17] Incapacity generally exists if the AIP is unable to engage without assistance in the activities of daily living ("ADLs"),[18] the AIP has functional limitations due to this inability, and the AIP is either unaware that he has such limitations or he fails to appreciate the consequences of those limitations.[19] While evidence of a medical or psychiatric condition is made relevant to the question of incapacity by statute,[20] access to such information and its admissibility are another matter. If the AIP contests the appointment of a guardian, which is quite common, proof of a serious medical or psychiatric condition will most likely have to come from lay testimony.[21] The focus is on the AIP's functional limitations, and lay witnesses may attest to those.
If an AIP consents to the appointment of a guardian, the proceeding is often resolved on the return date. However, if the AIP objects, the course of the proceeding is difficult to predict. Witnesses should generally be told to attend the first hearing even if it is unlikely that their testimony will be needed that day, unless the first hearing date is set for a regular (and often full) motion part at which you are certain the presiding justice will decline to swear witnesses or otherwise finalize the matter. Having everyone together in one place encourages discussion and sometimes leads to a consent guardianship. Again, this saves a repeat visit to the courthouse by a generally frail and confused AIP and all of the interested parties and counsel.
Now that we've discussed the basics of an Article 81 proceeding, let's move on to the situations in which you would consider initiating a guardianship proceeding. When a client seeks advice regarding a family member needing -- and perhaps vehemently resisting -- assistance with life management decisions, a good place to start to determine if a guardianship is appropriate is the list of powers that the court may award to a guardian of the person and/or property.[22] The list is extensive, and includes the power to decide where the AIP will live, who his associates will be, who will assist him with the activities of daily living, what routine and major medical decisions will be made for him, who will provide for his medical care, whether or not he will own or drive a car, how the AIP's money will be spent, including disposition by gift,[23] whether he will apply for government and other benefits, and, eventually, what funeral arrangements will be made upon the AIP's death. These powers exceed the cluster of powers held by a family member or friend who holds power of attorney and is named as a health care proxy for an AIP.[24]
Some powers, however, are surprisingly absent from the statute. Suppose your client seeks advice regarding a family member with severe problems relating to substance abuse or addiction or to a psychiatric disorder that has gone untreated. Your client anxiously reports that this person is engaging in behavior dangerous to himself or others, fails to appreciate the consequences of such behavior, and will likely come to harm or commit a crime unless he is involuntarily committed. Will the appointment of an Article 81 guardian allow a responsible person to make treatment decisions in these situations? The answer is no. Other remedies under the Mental Hygiene Law are available in these situations depending on the seriousness of the behavior and the danger that it poses,[25] but Article 81 specifically provides that guardians may not admit the AIP -- or, after a finding of incapacity, the "IP" -- to a locked psychiatric facility or drug treatment facility without his consent. Placements of that kind are akin to involuntary confinement; they require different proof and follow different procedures than those needed in guardianship proceedings.[26]
DNRs Absent from Article 81
Another power that is absent from Article 81 is the power to instruct a physician to enter a Do Not Resuscitate Order ("DNR") for a patient who lacks the capacity to understand and make an informed decision.[27] Without a DNR, the person faces the prospect of life-prolonging medical interventions that may not be in his best interests overall.
Once you have determined that the power that your client wishes to exercise over an AIP is a power that the court may grant, your next step is to review the type and quality of your client's evidence about the AIP's inability to engage without assistance in the activities of daily living ("ADLs"). The ADLs are basic to human health and survival, and call for eyewitness evidence, and in some cases circumstantial evidence, of an AIP's demonstrable inability to take care of personal needs or property management. Facts about ADLs, functional limitations and failure to appreciate consequences must be alleged in the verified petition, as must the powers that the petitioner seeks to have the court grant to the guardian and alternatives to guardianship that have been attempted or cannot be attempted without undue risk of harm. A guardian may be appointed only for one set of needs or the other, or for both, depending on the circumstances.[28]
If you determine that there is sufficient evidence of the need for a guardian and the AIP's incapacity (or consent), your next step is to prepare the verified petition and order to show cause. You are about to enter a fascinating area of law -- one in which you can make an incredible difference in the quality of people's lives. Our best wishes are with you.
[1] Mental Hygiene Law ("MHL") § 81.02 et seq. While a child nearing emancipation may be the subject of an Article 81 proceeding, most guardianship proceedings are instituted for elderly adults. Compare Article 17A of the Surrogates Court Procedure Act, which governs guardianship for mentally retarded and developmentally disabled minors and adults and which is markedly different from Article 81.
[2] A proceeding may be initiated by any person "concerned with the welfare" of the AIP, a presumptive distribute, the administrator or executor of an estate of which the AIP is or may be a beneficiary, a trustee of a trust of which the AIP is or may be the grantor or beneficiary, the person with whom the AIP resides, and various agencies. MHL § 81.06.
[3] Erie County's elderly represent approximately 20% of the population, with many entering "super" old age. See Erie County Senior Services Fact Sheet, available at www.erie.gov/depts./seniorservices/fact_sheet.asp. Elderly people who outlive their relatives and friends often have only landlords or other near-strangers to note their decline in ability to look after themselves. Particularly in harsh weather, the police, answering complaints about confused elderly people and others who exhibit altered mental states, transport them to the area's emergency rooms as a way of averting accidental death by starvation, poisoning by alcohol or other substances, freezing, or automobile accidents and fatalities. Many of these individuals become AIPs.
[4] NYS Health Department regulations require hospitals to write safe discharge plans for patients. These discharge plans must include arrangments for future health care needs that are either "secured" or "reasonably available." 10 NYCRR §405.9(b)(14)(i) and (f)
[5] MHL §81.07
[6] MHL §81.07(b)
[7] MHL §81.09. When an AIP is already represented by counsel, the court does not have to appoint an evaluator, and doing so will often add unnecessarily to the expense of the proceeding. MHL §81.10
[8] MHL §81.10
[9] MHL §81.23
[10] MHL §81.10
[11] MHL §81.08(a) 2, 81.07(g) 1. The list of relatives and others who must be identified is extensive and seeks to foster participation by as many close relatives and friends as possible. Issue of an AIP's grandparents must be notified if no closer relations exist.
[12] MHL §81.08(a)12; 81.17
[13] MHL §81.19
[14] MHL §81.09. Evaluators need not be but almost always are attorneys. Evaluators must undergo training and maintain their eligibility to serve. After performing their duties, they may apply to the court for a fee. When a petition is granted, the statute provides that the fee should be paid from the AIP's assets, and when a petition is dismissed, the court may order the petitioner to pay the fee. MHL §81.09(f). Evaluators often serve without compensation in the case of destitute AIPs, of which there are many.
[15] MHL §81.09(c)5. The evaluator's duties and subjects of inquiry are extensive, including interviewing the AIP and petitioner; determining whether the AIP wishes to have counsel, is able to come to the courthouse and participate meaningfully in the hearing; investigating the AIP's resources, the AIP's functioning with respect to the activities of daily living, and persons financially dependent on the AIP; and considering conflicts of interest among family members. The evaluator is not required to make a recommendation regarding the need for a guardian but evaluators almost always do so.
[16] If the AIP contests the appointment of a guardian, the evaluator's report is only admitted into evidence at the contested hearing if the evaluator testifies and is subject to cross-examination. MHL §81.12(b).
[17] MHL §81.02
[18] MHL §81.02(c). The ADL's include, but are not limited to, mobility, eating, toileting, dressing, grooming, housekeeping, cooking, shopping, money management, banking, and driving or using public transportation. MHL §81.03(h)
[19] MHL §81.02(c)
[20] MHL §81.02(c)4
[21] The statute does not require petitioners to attach medical records or affidavits to the verified petition, nor should the court refuse to grant an order to show cause initiating the proceeding or ultimately dismiss the verified petition on the sole ground that medical records were not supplied. The courts sometimes grant the evaluator the power to review medical records upon ex parte application. The best practice here is for the evaluator to send the AIP (or his counsel, if he is represented) a copy of the transmittal letter and draft order to review medical records, and to note in the letter that the AIP is thereby advised to contact the court if he objects to the disclosure. Even if such access is granted before the first return date, if the petition is contested, counsel to the AIP will generally object to the introduction of the evaluator's report if it contains evidence obtained from the AIP's medical records.
[22] MHL §§ 81.21 and 81.22. Also note that an AIP can be a petitioner when he needs a guardian but has no one to act or when he has battling offspring vying for control of his assets. The AIP can also consent -- not all Article 81 proceedings involve a truculent AIP -- provided the court finds that there are some functional limitations and the guardianship is needed. MHL §81.02(a)2. In the case of an AIP who owns his home, the guardian may be given the power to lease the primary residence for up to three years. The guardian must make further application to the court to sell the AIP's home if the proceeds are needed for his care. Guardians undergo instruction in their duties and have ninety-day and annual reporting obligations designed to prevent and detect any self-dealing beyond the modest fees permitted by the statute. MHL §§81.30, 81.31.
[23] The power to make gifts should not be exercised in a manner that benefits the guardian or defeats an AIP's testamentary goals. One of the duties of the court evaluator and the guardian is to locate any existing wills. The statute provides that a finding of incapacity under Article 81 does not negate testamentary capacity. MHL §81.29(b). In the case of an AIP who has been found to be incapacitated under Article 81 (an "IP") but who retains testamentary capacity, the IP's guardian should help the IP make arrangements to draft his will.
[24] An Article 81 proceeding is sometimes avoidable if the AIP has completed both a power of attorney and health care proxy when he had capacity to do so. The petition must include information about these grants of power by the AIP.
[25] E.g., MHL Article 7 & Article 9.
[26] This is not to say that a guardian is of no use to a psychiatric patient. The guardian, without forcing the AIP into a facility, can apply for government and private benefits and assist the AIP in locating an acceptable placement and in making payment arrangements.
[27] MHL §81.29(e). This section makes it clear that Article 81 does not change the common law in New York regarding who has the power to make decisions regarding life sustaining treatment. A regulation of the New York State Department of Health (10 NYCRR 405.43) lists in order of preference the individuals who may qualify for surrogate decision making for DNRs. An Article 81 guardian who qualifies as a surrogate decision-maker may make the decision regarding end-of-life treatment, but his status as guardian is beside the point. The long-awaited Family Health Care Decisions Act, expected to be enacted by the New York State Legislature in late 2006, will at last provide a vehicle for families to make medical decisions for patients who are unable to express their preferences and may never have clearly expressed them in the past. This may reduce the burden on the courts posed by guardianships brought to appoint guardians to make important medical decisions other than end-of-life decisions.
[28] MHL §§81.02, 81.15.