The Local District as Article 81 Guardian
Mark E. Maves, Esq. First Deputy County Attorney Monroe County Law Department July 19, 2016
What is an “Article 81 Guardianship?
Mental Hygiene Law Article 81 • Enacted in 1992, went into effect in 1993 • Replaced MHL Art. 77 (conservators of conservatees) and MHL Art. 78 (committees of incompetents) • Article 81 permits the court to appoint a guardian with personal needs powers, property management powers, or both.
Mental Hygiene Law Article 81 • Requires the court to find either that the alleged incapacitated person agrees to the appointment or that they lack the capacity to provide for their own personal needs and/or property management, cannot adequately understand and appreciate the nature and consequences of that inability, and are therefore likely to suffer harm.
How do you get to become a Guardian?
By court order, after the court has made findings pursuant to MHL §81.15
An example of an order is included in the materials
If your Commissioner is appointed guardian, does he/she have to perform all of the guardian functions?
No. In re Sutkowy, 270 Ad2d 943 (4th Dept., 2000), the Court held that the Commissioner can delegate guardianship responsibilities to local district staff, although he remains responsible if the staff fails to discharge the responsibilities.
General Duties‐ see MHL §81.20:
Exercise only those powers authorized by court order
General Duties‐ see MHL §81.20:
Exercise the utmost care and diligence when acting on behalf of IP
General Duties‐ see MHL §81.20:
Exhibit the utmost degree of trust, loyalty and fidelity in relation to IP
General Duties‐ see MHL §81.20: File an initial and annual report as per 81.30 and 81.31
General Duties‐ see MHL §81.20:
Visit the IP not less than four times per year or more frequently as per court order
General Duties‐ see MHL §81.20: A guardian given property management powers shall: • Afford the IP the greatest amount of independence and self‐determination with respect to property management in light of the IP’s functional level, understanding and appreciation of their functional limitations, and personal wishes, preferences and desires with regard to managing their ADL’s
General Duties‐ see MHL §81.20: • Preserve, protect and account for the property and financial resources faithfully • Determine whether the IP executed a will, locate same and determine the appropriate person to notify at the IP’s death • Use the property to support the IP and any dependents • At the termination of the appointment, deliver the property to the person legally entitled to it
General Duties‐ see MHL §81.20: • File with the county recording officer where the IP is possessed of real property an acknowledged statement to be recorded identifying the property, the tax map numbers, the date of the adjudication of the IP and the name, address and phone # of the guardian. • All other duties required by law
General Duties‐ see MHL §81.20: Afford the IP the greatest amount of independence and self‐determination with respect to personal needs in light of that person’s functional level, understanding and appreciation of that person’s functional limitations, and personal wishes, preferences and desires with regard to managing the activities of daily living.
When does the guardianship become effective?
When does the guardianship become effective? Temporary guardian‐ MHL §81.23(a)(3)‐ upon the issuance of the commission of temporary guardianship.
When does the guardianship become effective?
“Permanent” guardian‐ MHL §81.26 & §81.27‐ upon the filing of the designation of the clerk to receive process and issuance of commission.
Designation of Clerk to Receive Process • MHL §81.26‐ designates the clerk of the court to receive process for the guardian if the guardian cannot, with due diligence, be served within the state. • We combine a consent to act as guardian with ours‐ see example in the materials.
What is a “commission?” The Commission sets forth the powers of the guardian – See example attached in the materials
Commission MHL §81.27 requires that the Commission must only have the powers listed in it that were granted by the Order.
Powers of a Personal Needs Guardian Contained in MHL §81.22
Powers of a Personal Needs Guardian The guardian’s powers under an Art. 81 guardianship are limited to those that are granted in the Order. The following is the list of the powers set forth in MHL §81.22(a) that the Court could grant to a personal needs guardian.
Powers of a Personal Needs Guardian
Determine who shall provide personal care or assistance
Powers of a Personal Needs Guardian 2. make decisions regarding social environment and other social aspects of the life of the incapacitated person
Powers of a Personal Needs Guardian
determine whether the incapacitated person should travel
Powers of a Personal Needs Guardian 4. determine whether the incapacitated person should possess a license to drive
Powers of a Personal Needs Guardian 5.
authorize access to or release of confidential records
Powers of a Personal Needs Guardian 6.
make decisions regarding education
Powers of a Personal Needs Guardian 7.
apply for government and private benefits
Powers of a Personal Needs Guardian 8. (i) for decisions in hospitals as defined by subdivision eighteen of section twenty‐nine hundred ninety‐four‐a of the public health law, act as the patient’s surrogate pursuant to and subject to article twenty‐nine‐CC of the public health law, and (ii) in all other circumstances, to consent to or refuse generally accepted routine or major medical or dental treatment, subject to the decision‐making standard in subdivision four of section twenty‐nine hundred ninety‐four‐d of the public health law
Powers of a Personal Needs Guardian 9. choose the place of abode; the choice of abode must be consistent with the findings under section 81.15 of this article, the existence of and availability of family, friends and social services in the community, the care, comfort and maintenance, and where appropriate, rehabilitation of the incapacitated person, the needs of those with whom the incapacitated person resides; placement of the incapacitated person in a nursing home or residential care facility as those terms are defined in section two thousand eight hundred one of the public health law, or other similar facility shall not be authorized without the consent of the incapacitated person so long as it is reasonable under the circumstances to maintain the incapacitated person in the community, preferably in the home of the incapacitated person.
Powers of a Personal Needs Guardian The Court may also add powers that are not contained in MHL §81.22(a). These powers, like those enumerated above, should be tailored to the needs of the particular IP.
Three Things a Personal Needs Guardian Cannot Do 1. Consent to voluntary formal or informal admission of the IP to a mental hygiene facility under article 9 or 15 of MHL or to a chemical dependence facility under article 22. See MHL § 81.22(b)(1)
Three Things a Personal Needs Guardian Cannot Do 2. Revoke any appointment or delegation made by the IP pursuant to sections 5‐1501, 5‐ 1601 and 5‐1602 of the General Obligations Law, (power of attorney), sections 2965 and 2981 of the Public Health Law (Health Care Proxy). See MHL 81.22(b)(2)
What do you do if there is a POA that needs revoking?
Ask the Court to revoke the POA‐ although now a guardian is among those who can bring a special proceeding pursuant to General Obligations Law §5‐1510 to compel production of the POA and an accounting.
Three Things a Personal Needs Guardian Cannot Do
3. Consent to the involuntary administration of psychiatric medication to the IP. See In re Rhodanna C.B., 36 AD3d 106 (2nd Dept., 2006).
Property Management Powers
Property Management Powers 1. make gifts 2. provide support for persons dependent upon the incapacitated person for support, whether or not the incapacitated person is legally obligated to provide that support 3. convey or release contingent and expectant interests in property, including marital property rights and any right of survivorship incidental to joint tenancy or tenancy by the entirety
Property Management Powers 4. exercise or release powers held by the incapacitated person as trustee, personal representative, guardian for minor, guardian, or donee of a power of appointment; 5. enter into contracts; 6. create revocable or irrevocable trusts of property of the estate which may extend beyond the incapacity or life of the incapacitated person;
Property Management Powers 7. exercise options of the incapacitated person to purchase securities or other property; 8. exercise rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value; 9. exercise any right to an elective share in the estate of the incapacitated person's deceased spouse;
Property Management Powers 10. renounce or disclaim any interest by testate or intestate succession or by inter vivos transfer consistent with paragraph (c) of section 2‐1.11 of the estates, powers and trusts law 11. authorize access to or release of confidential records 12. apply for government and private benefits
Property Management Powers 13. marshall assets 14. pay the funeral expenses of the incapacitated person 15. pay such bills as may be reasonably necessary to maintain the incapacitated person
Property Management Powers 16. invest funds of the incapacitated person as permitted by section 11‐2.3 of the estates, powers and trusts law 17. lease the primary residence for up to three years 18. retain an accountant
Property Management Powers 19. pay bills after the death of the incapacitated person provided the authority existed to pay such bills prior to death until a temporary administrator or executor is appointed 20. defend or maintain any judicial action or proceeding to a conclusion until an executor or administrator is appointed
Property Management Powers Like for personal needs, the court may grant other powers if appropriate
Property Management Powers For instance… Have access to any and all accounts and records thereof, of the incapacitated person in any financial institution, including banks, and the authority to transfer any funds therein and conduct other financial transactions.
Property Management Powers Or…. The authority of the guardian to sell real or personal property of the IP.
Medical decision making MHL §81.22(a)(8) (i) for decisions in hospitals as defined by subdivision eighteen of section twenty‐nine hundred ninety‐four‐a of the public health law, act as the patient’s surrogate pursuant to and subject to article twenty‐nine‐CC of the public health law, and (ii) in all other circumstances, to consent to or refuse generally accepted routine or major medical or dental treatment, subject to the decision‐making standard in subdivision four of section twenty‐nine hundred ninety‐four‐d of the public health law
Medical decision making
Obligation to make decisions in accordance with the IP’s wishes, if known
Medical decision making
Obligation to make decisions in accordance with the IP’s best interests, if wishes not known
Medical decision making Public Health Law §2994‐d‐ Health Care Decisions for Adult Patients by Surrogates: • “Surrogate” includes Art. 81 guardian • This law says that the health care provider does not have to seek the consent of the surrogate where the patient has already made a decision about the health care, in certain instances
Medical decision making Public Health Law §2994‐d‐ Health Care Decisions for Adult Patients by Surrogates: • The surrogate has the right to receive medical records and information necessary to make an informed decision • The surrogate is obliged to make the health care decisions in accordance with the patient’s wishes, including their religious and moral beliefs
Medical decision making Public Health Law §2994‐d‐ Health Care Decisions for Adult Patients by Surrogates: • If the patient’s wishes are not known and can’t be determined, the health care decisions are to be made in accordance with the patient’s best interests • In all cases, the decisions are to be patient‐ centered, and made on an individualized basis
Medical decision making Public Health Law §2994‐d‐ Health Care Decisions for Adult Patients by Surrogates: • In addition to the considerations above, the surrogate may only withhold or withdraw life‐ sustaining treatment if: 1. The treatment would be an extraordinary burden to the patient, and an attending physician, with the concurrence of a second
Continued physician determines that to a reasonable degree of medical certainty the patient has an illness or injury that will cause death within six months or that the patient is permanently unconscious, or 2. The treatment would involve such pain suffering or other burden that it would be deemed inhuman or extraordinarily burdensome and the patient has an irreversible or incurable condition, as determine by an
Continued attending physician and a second concurring physician. • In a residential health care facility, a surrogate may refuse life sustaining treatment under #2 above only if the ethics review committee or a court reviews the decision. This does not apply to a decision to withhold CPR • In a general hospital, the attending physician may object to the surrogate’s decision to withhold or withdraw nutrition and hydration, at which point
Continued The decision is to be reviewed by the ethic review committee or a court. • Nutrition and hydration provided orally, without reliance on medical treatment, is not “health care” for the purposes of this law, so is not subject to this law
Place of abode vs. medical decision making. Potential issues/considerations: Nursing home placement is set forth under guardian powers as a change in place of abode, not a medical decision. However, in practice, the decision to place in a nursing home may be based upon medical necessity.
Place of abode vs. medical decision making. Potential issues/considerations: Hospice – could this be seen as change in abode or medical decision?
Reports Each guardian is obliged to file an initial report, annual reports, and a final report after the death of the IP or if the guardianship is otherwise terminated. Even if a guardian has only one power, such as medical decision making, they are obliged to do the reports.
Initial Report MHL §81.30 – example attached to the handout
Initial Report The initial report must be filed with the court that appointed the guardian, not later than 90 days after the commission is issued. The guardian shall also send a copy of the initial report to: the Court Evaluator, if there was one, the IP’s attorney, the IP, unless the Court ordered otherwise, the court examiner and to the chief executive officer of a facility if the IP resides at a facility
Initial Report The initial report of the personal needs guardian must include a copy of any health care proxies executed by the IP. The guardian cannot revoke a health care proxy. The guardian, as part of the initial investigation, should check to see if any health care proxies are in existence.
Initial Report Note carefully the instructions given in the initial report form.
Initial Report If you are guardian of the person only, you do not have to complete the property management portion of the report
Appellate Division letter to Court Examiner
example attached Letter provides name and contact information of Court Examiner and date initial report is due.
Annual report MHL §81.31 – example attached to the materials
Note carefully the instructions given in the initial report form.
Annual report The annual report must be filed in the office of the clerk of the court which appointed the guardian in the month of May, unless the court order designates a different month. The guardian shall also send a copy of the annual report to: the IP, unless the Court ordered otherwise, the court examiner and to the chief executive officer of a facility if the IP resides at a facility, and to MHLS, if the IP is in a mental health facility
Intermediate report MHL §81.33 No forms are attached
Intermediate report The law permits the guardian to ask the court to allow her to file an intermediate report. This would most likely happen if there was a motion to remove the guardian.
Final Report MHL §81.33
Final Report The law also requires the guardian to file a final report if the guardian is removed or when the IP dies. If the IP has died MHL §81.44 requires that this be done within 150 days of the death of the IP, and that the guardian proceed to judicially settle the report
Final Report If the IP has died MHL §81.44 requires that this be done within 150 days of the death of the IP, and that the guardian proceed to judicially settle the report
Final Report Notice of the final report must be given to anyone identified in the order granting the guardianship as requiring notice of further proceedings. The court would then review the report and approve it.
Proceedings Upon the Death of the IP The guardian must prepare and send a copy of the “Statement of Death” to all parties who are required in the order to be given notice of further proceedings. The statement would be served by regular mail and by certified mail return receipt requested.
Proceedings Upon the Death of the IP Within 20 days of the death of the IP, the guardian must serve a copy of the statement of death on: • The court examiner • The appointed personal representative of the estate • If no personal representative appointed, then on one named in any will or trust statement, if known
Proceedings Upon the Death of the IP • The local DSS • The Public Administrator The original statement of death must be filed with the court, along with affidavits of service of the persons above that were served
Proceedings Upon the Death of the IP Within 150 days of the death of the IP, the guardian shall serve a statement of assets and a notice of claim upon either • The appointed personal representative of the estate, or • If no personal representative appointed, then on one named in any will or trust statement, if known
Proceedings Upon the Death of the IP The guardian shall then deliver all guardianship property, except that retained to secure any known claim, lien or administrative costs of the guardianship, to the personal representative of the estate or to the public administrator, if no personal representative
Proceedings Upon the Death of the IP One of the permissible property management powers is that the guardian may pay bills after the death of the incapacitated person provided the authority existed to pay such bills prior to death until a temporary administrator or executor is appointed Further, MHL §81.44(e) states that the guardian may retain pending the settlement of the
Proceedings Upon the Death of the IP guardian’s final account, guardianship property equal in value to the claim for administrative costs, liens and debts. In 2015 the Court of Appeals decided M. of Shannon 25 NY3d 345, and held that the above holdback applies only to administrative costs, administrative liens and administrative debts, not
Proceedings Upon the Death of the IP other claims and debts such as those from a nursing home. The Shannon case held that the guardian should not have withheld an account to pay the nursing home, instead, that property becomes part of the late IP’s estate, and from there the respective priorities of the estate’s creditors get determined.
Guardian Training MHL §81.39(b) each guardian must complete a training program approved by the chief administrator of the courts which covers: • Duties and responsibilities • Rights of the IP • Resources to aid the IP • Orientation to medical terminology • Preparation of reports
Guardian Training MHL §81.39(c) permits the court to waive the education requirement‐ we ask the court to do that if our commissioner is appointed.
Guardian Training http://www.nycourts.gov/index.shtml Topics A to Z Guardian Assistance Network
Bond Per MHL §81.25(a) the court may require or dispense with the filing of a bond. We ask that the bond be waived when our commissioner is appointed.
Special thanks to my editor and contributor to this presentation: Mary E. Teator, Esq. Deputy County Attorney Monroe County Law Department