Filing Guardianship Petitions: Do’s and Don’t’s

Filing Article 81 guardianship petitions in New York is complicated and requires an understanding of the laws, rules, and practice that form the landscape of Article 81 guardianships.

In addition to being familiar with the governing procedural and substantive law set forth set forth in Articles 81 and 83 of the Mental Hygiene Law and the case law interpreting it, practitioners representing petitioners must be familiar with, inter alia, the Rules of the Chief Judge, including Part 36; the applicable New York Civil  Practice Law and Rules, particularly those governing special proceedings; the relevant provisions of the  General Obligations Law and the Public Health Law; the practice and requirements of the applicable guardianship department of the county of filing; and individual judges’ part rules and practices.

Below are some practical tips to guide attorneys who are commencing an Article 81 petition.

DO…

File in the appropriate county of venue. —Contact the guardianship department of the particular county where you are filing to ask about forms and local procedures. Procedures vary  from county to county and even from judge to judge.

The Mental Hygiene Law is very specific about what the petition must contain, down to the size of the font that you must use in the order to show cause.  Make sure you have all the necessary information in the correct format.

— Recite the magic words set forth in the “Mental Hygiene Law” in your petition:”functional limitations” * “activities of daily living” *“incapacitated” * “is at risk of harm” * “unable to understand and appreciate the nature and consequences…”

—Dot your i’s and cross your t’s. —If you are using a template, carefully tailor your petition to the specific case at hand. For example, if you are only seeking a guardian of the person, make sure that you delete from the template the provisions relating to guardian of the property. A careless typo, such as referring to a female Alleged Incapacitated Person (“AIP”) as a “he,” could call into question the accuracy of the other information contained in the petition.

—Apprise the court of all family members, significant others, and any other potential “interested persons” that are or may be entitled to notice.   Don’t omit the AIP’s other child who your client claims that mom hasn’t spoken to in years!  If you believe that an individual who is otherwise entitled to notice should not be served with papers, request that the court waive service and set forth your reasons in the petition.

Make sure you can meet your burden of establishing, by clear and convincing evidence, that the AIP is incapacitated. Do your due diligence prior to filing the petition to establish that you have sufficient evidence to make a prima facie showing of the applicable  elements.

DON’T…

Merely make conclusory boilerplate allegations such as that “the AIP suffers from functional limitations and as a result thereof cannot perform activities of daily living.” Specify the AIP’s functional limitations and the activities of daily living the AIP needs assistance with.  What can AIP do/not do independently? Provide examples of how these limitations manifest. If you don’t provide sufficient detail, you risk having the court decline to sign your order to show cause.

—Include sensitive or confidential information that you do not want in a public file. Unlike matrimonial cases, which are all sealed, guardianship cases are not automatically sealed in every county. In most counties, an application has to be made to seal the file and you must establish “good cause”.  If there’s sensitive information that you do not want in the County Clerk file, consider submitting it separately to the court for in camera inspection.

— Disseminate the filings beyond the service provisions set forth in the order to show cause without prior court approval. Article 81 is very specific as to which document gets served upon whom. For example, “interested persons” are entitled to service of a copy of the petition and notice of proceeding, but not of the petition. If an interested person requests a copy of the petition, seek the court’s specific permission.

—Just list the laundry list of powers set forth in the statute.  Tailor the powers you are seeking to be given to the guardian to the specific needs and goals of your case. For example, if the AIP is capable of continuing to pay her own routine bill, but not of managing more sophisticated financial transactions, craft the guardianship powers you are seeking accordingly.

—Put on duplicative or cumulative testimony. Generally, if you have a credible witness with personal knowledge of the AIP’s circumstances whose testimony can establish the elements of incapacity, that may be all you need. Sometimes less is more. In contested guardianship proceedings, additional corroborating testimony may be appropriate for disputed issues.

—Be distracted by red herrings. Many tangential issues often arise and become the subject of contention, and pending related civil and criminal matters may become implicated. As attorney for petitioner seeking the appointment of a guardian, your burden is to establish the AIP’s incapacity and need for a guardian and, if your client wishes to be guardian, why he/she is appropriate.  Other claims, such as financial misappropriation, crimes that may have been committed against the AIP, or inter-familial disputes over what is best for the AIP can usually be dealt with by the guardian, if one is appointed.

Leave a Reply