- Guardianship — all types — for the aged, or incapacitated, or disabled persons, or children, etc.
- Trusts and Estates — preparation of documents. filing and resolving Surrogate’s court proceedings; also, Powers of Attorney and other related documents.
- Wills and Probate — estate proceedings; Probate proceedings; Administration proceedings (when there is no valid Will); preparation of Wills, Codicils, and Trusts.
- Accounting proceedings in the Surrogate’s Court, and all other types of proceedings in the Surrogate’s Court (which is the New York Probate Court)
- Serves as Mediator and Arbitrator in all types of disputes and proceedings in litigation — business, partnership and corporate disputes, closely held businesses, employment disputes, estates, Wills, guardianship and family disputes — resolving disputes by arbitration and/or mediation.
Many people, when they think of Guardianship, believe it only relates to Guardian of a child, for a child who is under the age of 18 years. However, there are various other types of Guardians as well.
“The Guardian of a child can be named under someone’s will in case there is no parent. These proceedings are in the Surrogate’s Court. There are other types of Guardians for other types of situations, for parties who may be under a disability.”
There are proceedings for a Guardian under Mental Hygiene Law Article 81, a Guardian for an “incapacitated person”. These proceedings can and very often are very contentious, and many are highly litigated; the Court will appoint a Court Evaluator to investigate and write a report for the Court. In addition, if the “alleged incapacitated person” (AIP) objects or does not want a Guardian or for various other reasons, the Court also will appoint Legal Counsel for the AIP. This makes the matter much more contentious and can be extremely litigated. These proceedings are practically always required to be brought in the Supreme Court; in some situations, if it relates to an estate, the proceeding may be brought in the Surrogate’s Court.
Another type of Guardianship proceeding which is very different is pursuant to Article 17-A of the Surrogate’s Court Procedure Act; it is for very specific types of illness and disability; including mentally retarded persons, and developmentally disabled persons whereby the condition is permanent in nature or likely to continue indefinitely, and where the disability is attributable to specific illness such as cerebral palsy, epilepsy, autism or traumatic head injury, and where the disability occurs before the person attains 22 years of age. It is necessary to have certification from a psychiatrist and or physicians. It is certainly a very different type of proceeding than Article 81 of the Mental Hygiene Law, and is generally not as contested nor litigious.
There are entirely different standards for these types of Guardians. Pursuant to Article 17-A of the Surrogate’s Court Procedure Act the Court considers the best interests of the person. It is an entirely different standard. In most cases, a parent or other close relative is appointed as a Guardian in an Article 17-A Guardianship matter.
Pursuant to Article 81 of the Mental Hygiene Law, a Court can appoint a Guardian for an ‘Incapacitated Person’, after a determination at a hearing that the appointment is necessary based upon ‘clear and convincing evidence’. In these types of proceedings it is necessary that the AIP appear in Court for the hearing or that there must be testimony and evidence there would be no meaningful participation by the AIP. If a Guardian is appointed, the Guardian is appointed with ‘tailor made’ powers that should be limited to meet the needs of the particular person. The Guardian appointed may be Guardian of the Property or Guardian of the Person, or Guardian of both the Person and the Property. The Guardian would generally be required to obtain a Bond from a surety company and the Guardian is required to file annual accountings and reports. If the powers of the Guardian have to be increased or modified in any way, an application is made to the Court to amend the powers. In this type of proceeding it is not always necessary to have medical testimony although it certainly could be useful but is not necessarily always needed.
Some of these proceedings are contested and it ends up having a great deal of litigation.
Leona Beane can assist in this endeavor as she has been involved in many Article 81 Guardianship proceedings and has lectured and written extensively in this area. Leona Beane will be able to assist in obtaining a bond and following the Court’s rulings and preparation and filing of accountings and reports and in preparing motions to amend powers if necessary.
For thorough and professional legal service in New York, call Leona Beane at 212-608-0919
New York, NY 10279