Guardianship

Who may commence a Guardianship Proceeding?  

If you are concerned that a loved one or family member can no longer take care of their finances or are unable to make safe medical decisions for themselves, a guardianship proceeding may need to be commenced.   Who has the authority to commence a Guardianship proceeding? M.H.L. §81.06 lists specifically who may commence a guardianship proceeding.   §81.06 sets out some specific people who have authority to start a guardianship proceeding such as any distributee (meaning any person who would be entitled to the AIP’s estate according the NY laws of intestacy EPTL §4-1.1), an executor of an estate where the alleged incapacitated person is or may be the beneficiary of the estate, the trustee of a trust when the alleged incapacitated person is or may be the grantor or a beneficiary of that trust, or a person whom the person alleged to be incapacitated resides.

There is a catch all provision to §81.06. Under 81.06(a)(6) “ a person otherwise concerned with the welfare of the person alleged to be incapacitated,” can commence a guardianship by filing a petition.

In other words, anyone concerned for an alleged incapacitated person (AIP) can commence a guardianship proceeding.  This includes friends, significant others, neighbors, even the mailman.

 

Daredevil Dan Example:

Daredevil Dan has been living in an apartment in Fort Greene, Brooklyn.  His mind has been beginning to fail him and he has been wandering around his apartment complex unable to find his apartment. Daredevil Dan’s friend, Jeremy, sees Daredevil Dan struggling and decides to commence a Guardianship proceeding.