Making a Prima Facie Showing of Incapacity

 As discussed previously in Filing & Answering Article 81 Guardianship Petitions, a request for the appointment of a guardian for an alleged incapacitated person (AIP) begins with the filing of a petition formulated to initiate a court proceeding.  Article 81 of the Mental Hygiene Law (Article 81), the operative statute guiding these types of proceedings, details the factual information which must be contained in the petition, as well as, how this information is to be formatted in the document.  If the petition is either legally or factually insufficient, a reviewing judge will decline to sign the accompanying Order To Show Cause; a fate no well-intended petitioner should endure. For this reason, when commencing this type of a proceeding there is no substitute for both practical experience and a working knowledge of Article 81, as further highlighted below.

To begin, Article 81 requires the petition be verified under oath and contain very specific facts, including the name, age, address and telephone number of the person alleged to be incapacitated and the name, address and telephone number of the person(s) with whom the alleged incapacitated person resides, if any. (MHL § 81.08). The petition must also contain a description of the AIP’s functional level including that person’s ability to manage the activities of “daily living, behavior, and understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living.” (Id.)  Further, if a petitioner is requesting that the court give certain authority to the guardian relating to the “personal needs” of the AIP, the statute requires the recitation of “specific factual allegations as to the personal actions or other actual occurrences” which demonstrate that the person is at risk of harm or lacks an “understanding or appreciation” of his or her inability to provide for personal needs. (Id.) Likewise, if a petitioner is asking a court to permit a guardian to manage an AIP’s property, including financial transactions and other money management, the petition must contain specific factual allegations which are sufficient to warrant such a remedy. (Id.)

Accordingly, the reviewing judge will deny a petition and not permit the commencement of a guardianship proceeding if the underlying information does not demonstrate a prima facie showing that the appointment of a guardian is necessary because it is factually insufficient.  For example, the following examples highlight what is deemed an insufficient statement of facts as opposed to a sufficient statement:

Example 1: Insufficient Facts

  1. [Name of alleged incapacitated person] is at risk of harm.
  2. [Name of alleged incapacitated person] is unable to provide for her personal needs without assistance.
  3. [Name of alleged incapacitated person] is not capable of understanding the nature and consequences of his or her actions.

Example 2: Sufficient Facts

  1. [Name of alleged incapacitated person] has for many years accumulated stacks of old newspapers and magazines; an assortment of empty cans, soda bottles, used papers cups and plates, used plastic utensils, plastic bags, paper bags, old mail, rotting food, dirty clothing; and other assorted materials throughout the small kitchen area in her studio apartment.
  2. The above described materials are stacked on the stove top and in the oven.
  3. The stove is operational.
  4. [Name of alleged incapacitated person] has refused to allow her niece to assist her with cleaning the kitchen area and removing the above described items.
  5. [Name of alleged incapacitated person] has advised her niece that the materials in the kitchen are important to her and cannot be removed from the apartment.
  6. The condition described in the kitchen also exists in other areas of the studio apartment.
  7. [Name of alleged incapacitated person] will not permit her niece to clean and remove these items from her small studio apartment creating a tripping hazard.
  8. In addition, [name of alleged incapacitated person] does not appear to have a place to sit in the studio apartment because the sofa is stacked with materials.

In addition, the petition must contain the “powers” or authority the petitioner is requesting that the court provide to the guardian.  The court may grant a guardian both personal needs and property management powers or only one set of powers, depending upon the specific needs of the AIP and the “powers” detailed in the petition. While the Article 81 statute does not specify that personal needs and property management powers are listed in the petition, this is a common practice and the court will rely upon this information in making the requisite findings in appointing a guardian and deciding the authority to be given to that individual. (See MHL § 81.15).

It is not helpful to the court when a draftsperson merely copies and recites powers in a petition obtained from some sample guardianship petition which are inappropriate for the matter before the court.  Also, it undermines the integrity of the draftsperson and likely calls into question for the court the credibility of the factual allegations in the petition. In any event, there is no excuse for such sloppy legal work especially in matters where a petitioner is calling upon the court to intervene in a very drastic way in someone’s life effecting their ability to function independently.

Thus, a draftsperson needs to pay particular attention when drafting the “powers” sought in the petition to ensure the authority requested complements the particular circumstances of the matter before the court.  Also, although “personal needs” and “property management” are defined within the statute, (see MHL § 81.03), an AIP may require “personal needs” assistance with matters not limited to those defined in the statute as “food, clothing, shelter, health care and safety”  (Id.).

For example, available facts suggest the AIP is frail, of advanced age and controlled, isolated and manipulated by a nephew. This individual has taken control of the AIP’s life and finances and cut-off all of the AIP’s outside contacts and communications.  So while food, clothing, shelter, health care and safety appear to be adequate, the AIP appears to be afraid of the nephew and at risk of harm from social isolation, emotional abuse and probably financial exploitation.  Under these circumstances, the petitioner would be justified in requesting “personal needs” powers for a guardian which extend beyond those defined in the statute and which could include the authority for the guardian to limit, restrict or prevent any unsupervised visitation by the nephew.

The above noted fact pattern is not uncommon and highlights both the complexity of guardianship matters, often involving disturbing family dynamics, and the need for diligent factual investigation. It is only through diligent factual investigation, resulting in independently corroborated information, that an Article 81 petition for guardianship will be deemed sufficient by the court.  This challenge can be all the more complicated when the factual sources of the information wish to remain anonymous or uninvolved. Often, the more controversial the underlying fact pattern, the more difficult it can be to obtain fact witnesses who will testify before the court. For all of these reasons, drafting a sufficient petition can be quite challenging in these circumstances.

Furthermore, while the factual sufficiency of a petition depends upon compliance with the above noted pleading requirements, the reviewing judge may also reject the initial written submissions if the documents fail to conform to the formatting requirements set forth in the notice section of the statute. (MHL § 81.07).  For example, the Order To Show Cause (OTSC), filed with the petition, must be “written in large type, in plain language, and in a language other than English if necessary . . .”  to ensure that the person alleged to be incapacitated has been adequately informed of his or her rights. (MHL § 81.07 (c)).  The statute further requires a specified “legend” be inserted into the document in “twelve point or larger bold face double spaced type.”  (MHL 81.07(d)). This legend must be predominantly displayed on the first page of the OTSC.

Of note, while the statute indicates the following designations must be contained in the OTSC, the reviewing judge will insert the information into the blanks spaces which need to be provided in the document by the drafter:

  • Date, time and place of the hearing of the petition;
  • The name, address, and telephone number of the person appointed as court evaluator;
  • The name, address and telephone number of the attorney appointed to represent the alleged incapacitated person, if deemed necessary by the judge;

See MHL § 81.07(b)(1), (3), (4).

In sum, to ensure a petition for guardianship is justified, meritorious and, thereby, acceptable to the court, there is no substitute for diligent fact checking, attentive review of the statutory requirements and careful drafting.

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