Art Does Not Imitate Life: NY’s Person-Centered Guardianship

February 24, 2021 | Wendy Hoey Sheinberg | Trusts & Estates

The new Netflix movie, “I Care a Lot,” is truly terrifying. Like many thrillers, this movie begins with a relatable premise and a relatable fear. In this case, it is the fear of dependence and exploitation.

The film builds on those fears until our very worst nightmares are playing out before our eyes.

Unbeknownst to Jennifer Peterson, her doctor commences a guardianship proceeding against her, and she loses all control over her life. Scary though it may be, the story is grounded in reality. With proper planning, it is possible to avoid the need for a guardianship altogether.

Fortunately, guardianship proceedings in New York do not resemble the Dickenson legal structure portrayed in the film. New York’s adult guardianship statute (Article 81) contains many safeguards designed to preserve the rights of the person who needs assistance – the alleged incapacitated person, or AIP. Article 81 places the burden of proof on the person making the allegation – the Petitioner — that another is incapacitated. The Petitioner must prove by clear and convincing evidence that not only is the person incapacitated, but that they are likely to suffer harm because they cannot provide for their own needs and they cannot adequately appreciate and understand the nature and consequences of that inability. In New York there must be a hearing to determine if a guardian should be appointed, and the AIP has a right to demand a jury trial.

The guardianship process begins with the filing of a petition in the court. Under Article 81, the petition must explain:

  • The identity and residence of the AIP
  • The identity of the AIP’s next of kin
  • The specific functional limitations of the AIP and how those limitations prevent the AIP from managing their personal needs and/or their property
  • That the AIP lacks the ability to implement a plan that meets their needs, and that the appointment of a guardian is the least restrictive way to meet their needs
  • Whether the AIP has an existing health care proxy and/or power of attorney (Advance Directives). The Petition must also provide the names and contact information for the agents named in the Advance Directives. The Petition must also explain the Advance Directives are not sufficient to provide the AIP with the assistance needed
  • Whether the AIP has a will and the name and contact information for the named executor

If the court finds that there may be a need for a guardian, the judge will sign an Order to Show Cause. Article 81 requires that the Order to Show Cause meet specific language informing the AIP of their legal rights, the time and place of the hearing, the name and contact information of the court clerk and the court appointed court evaluator.

The AIP must be served with a copy of the Order to Show Cause (OTSC) and the petition and all supporting documents that were filed in connection with the petition. The OTSC and a notice of proceeding must be served on the AIP’s next of kin and other parties specified by the court. In the OTSC the court appoints a court evaluator, and sometimes counsel for the AIP. The court evaluator serves as the eyes and ears of the court and undertakes an investigation of the allegations in the petition. The court evaluator MUST meet with the AIP, and in addition to interviewing the AIP, the court evaluator must find out if the AIP objects to the guardianship and if the AIP wants or should have counsel appointed. The court evaluator interviews the AIP’s next of kin and other individuals. The court evaluator must also submit a written report to the court.

In New York the AIP has an absolute right to be at the hearing, to present witnesses, to submit evidence, to cross-examine witnesses and to testify. If the AIP cannot come to court, the hearing can be held at the AIP’s residence, including a hospital or nursing home. During the COVID crisis, hearings have even been held by audio-video conferencing.

The burden of clear and convincing evidence is a stringent standard. The AIP does not have to disprove the allegations. If the Petitioner does not meet their burden, the petition can be dismissed. If the proceeding was commenced in bad faith, the court can require the Petitioner to pay certain costs of the proceeding.

If, after the hearing, the court is satisfied by clear and convincing evidence that the appointment of a guardian is necessary, the court will sign an order and judgment. The order and judgment will give the guardian specific authority and duties. The guardian will only be given the powers necessary to make up for the AIP’s functional limitations. Powers that are not granted to the guardian remain with the AIP.

Regardless of the powers given to the guardian, the guardian must afford the AIP the greatest amount of independence and self-determination, and consider the AIP’s personal wishes, preferences and desires.

Unlike the nightmare portrayed in the film, in addition to the safeguards under Article 81, New York has specific proceedings prior to removing an AIP from their residence, as there is a strong preference for people to be cared for at home.

Involuntary psychiatric admissions and the administration of certain drugs and treatment will also be subject to separate proceedings. Specifically, an Article 81 guardian has no right to consent to or authorize in any fashion, in the absence of further order of the court, the administration of psychotropic or antipsychotic drugs, or electroconvulsive therapy.

While the reality of New York guardianships is focused on being the least restrictive intervention possible, there are steps that can be taken to reduce or eliminate the need for a guardianship. The most important safeguards are meeting with a skilled experienced elder law attorney to create a comprehensive long-term care plan. If you have an existing long-term care plan, you should review it with your elder law attorney periodically to make sure it still meets your needs and to make the necessary adjustments to keep you in charge of you.

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