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.

What does the New York Jets all time sack leader have to do with Elder Law?

Recently Mark Gastineau, the New York Jets all time sack leader, told the public that he was diagnosed with dementia, Alzheimer’s disease, and Parkinson’s disease. Alzheimer’s disease is an awful disease that affects the brain and destroys memories and other important mental functions.  He may not be able to recall family members or how to get dressed. It is an absolutely awful and debilitating disease.  Alzheimer’s disease is a progressive disease and will eventually render Mark Gastineau incapacitated. There are two ways of dealing with incapacity. First planning in advance through advanced directives and second through a guardianship.

Due to this incapacity, Mark will have trouble taking care of his financial affairs and issues giving the doctor direction as to his treatment.  With some basic estate planning, Mark could plan for this eventual incapacity.  By executing a power of attorney and health care proxy a full guardianship can be avoided. These documents are called advanced directives.  A power of attorney will allow an agent of your choice to take care of your financial matters.  A health care proxy allows an agent to make medical decisions for a person if they are unable to give a doctor direction.

If there are no advanced directives in place, a court hearing called a guardianship may need to be commenced to help Mark with his financial affairs and medical decisions.   A guardianship may be commenced by a loved one or a friend.  The person commencing the hearing is called the petitioner. The petitioner must prove by clear and convincing evidence that a person alleged to be incapacitated (AIP) has functional limitations and is in fact incapacitated and in need of a guardian.   To learn more about guardianships or have any questions, contact Miller & Miller Law Group PLLC.

Why Every Young Family Should Have an Estate Plan!

When people think of estate planning, they usually think of the elderly or people in white clothes playing tennis on their massive estates in the Hamptons. Both the elderly and the super wealthy need estate plans, but so does everyone, especially parents with young children.  Estate planning consists of planning for two events, death (morbid, I know) and incapacity.

A Last Will & Testament and Trust are documents used to specify your wishes upon your passing.  These documents can specify to whom your bank accounts, real estate, and personal belongings are left.  More importantly, a Last Will & Testament can specify who would be your child’s guardian if both you and your partner were to pass. Even if you do not have much in terms of funds, planning to make sure that your child is cared for by the right person or persons in the event of a catastrophe is very important.  A Last Will & Testament or Trust can also specify the age in which your child would receive money inherited.  If you do not specify, a child would inherit at the age of eighteen (18) and could spend all that money on a Ferrari instead of on college.

Planning for incapacity is very important and often overlooked.  A healthcare proxy allows an agent to make medical decisions if you are unable to give the doctor direction.  A power of attorney can be used by an agent to take care of financial matters if you are unable to.  By executing these documents, you specify who you would like handling your financial affairs and medical decisions.  Without these documents, fighting between family members can occur and a guardianship may need to be commenced in order to appoint a person to handle these affairs.

Daredevil Dan Example

Daredevil Dan and his wife Brittany left their child Charlie at home and traveled to Hawaii for a much need vacation. In a freak accident, both Daredevil Dan and Brittany were eaten by sharks while scuba diving, and that was the end of Daredevil Dan and Brittany.  Daredevil Dan and Brittany did not go to Miller & Miller Law Group PLLC and did not have a Will specifying who would be Charlie’s guardian in the event they both passed away. After a contested guardianship, Charlie ended up living with crazy Uncle Steve instead of Daredevil Dan and Brittany’s choice, sane Aunt Nikki.  Had Daredevil Dan and Brittany gone to Miller & Miller Law Group PLLC, Charlie could have been living and cared for by Aunt Nikki instead of crazy Uncle Steve.


Estate planning is very important for people of all ages. Contact Miller & Miller Law Group PLLC for all your Estate Planning needs.


The Power of the Power of Attorney

A power of attorney is a very interesting and possibly powerful document. The document gives a person you choose, your agent, the power to act for you.  The powers given to the agent can be incredibly broad or very specific. For instance, you can narrowly tailor an agent’s power to act only for real estate transactions. You can go as broad as to give an agent power to gift away all a person’s assets for Medicaid planning.   That person may even be given authority to make gifts to themselves. Your agent should be a person that you trust implicitly.  A power of attorney is a very important estate planning tool and can possibly prevent the need for a guardianship.

Powers of attorney can be durable or springing. A durable power of attorney will continue through a person’s incapacity.  A springing power of attorney, ‘springs’, into action when a person becomes incapacitated.  The problem with a springing power of attorney is, who decides that you are incapacitated? Many springing power of attorneys require that two or more certified doctors declare you to be incapacitated. This can become an issue due to HIPAA violations and can result in costly court hearings.  A durable power of attorney is recommended.

Your agent is under a fiduciary responsibility to act in your best interest.  The agent should also keep records and receipts of all payments through the power of attorney and needs to keep the property separate and distinct from their own assets. Miller & Miller Law Group PLLC has over 35 years of experience within estate planning & power of attorneys. For further questions or to request a consultation please feel free to give us a call at (718) 875-2191 or fill out an online contact form.

“Running Roughshod?” – A Case to Ponder

An important case has recently been decided and should be thoroughly reviewed by those who practice Article 81 Guardianship.   In a bitterly split panel of the Appellate Division,  First Department, the majority affirmed sanctions imposed on an attorney in an Article 81 guardianship hearing.  The majority, however, reduced the amount of sanctions imposed.  Justice Andrias wrote the majority opinion for In Re Kover, 2015 N.Y. Slip Op 7802 (N.Y. App. Div., 2015)  in which he found that two affirmations submitted by the Alleged Incapacitated Person’s (AIP) attorney were “replete with misrepresentations, omissions, distortions, and statements taken out of context.”   Justice Saxe wrote a scathing dissenting opinion stating that “[t]he majority has extended the law of sanctions in the First Department beyond any existing precedent to the point where it will dangerously chill zealous advocacy and impair the independence of the trial bar.”  Despite the disagreement on the issue of sanctionable conduct, both the majority and dissent agreed on what is necessary for consent in an Article 81 Guardianship hearing. The majority, however, states that consent was before this Court and therefore not an issue to be decided on this appeal.  The facts of  In Re Kover, are as follows:

In July 2012, Self Help Community Services, Inc. petitioned for a Guardian to be appointed over the person and property of Dr. Dworecki, a 94 year old woman. Dr. Dworecki obtained representation who submitted opposition to the guardianship petition on behalf of Dr. Dworecki. Included in this opposition was an affidavit of a treating physician which stated that Dr. Dworecki was competent and did not need a guardian. Dr. Dworecki’s longtime friend Edward Muster had a valid power of attorney and Dr. Dworecki specifically stated she wanted Edward to control her finances. Mr. Muster was also listed as the Executor and primary beneficiary of Dr. Dworecki’s will.   Dr. Dworecki had no immediate family and Mr. Muster had been Dr. Dworecki’s friend and financial advisor for over 22 years.

On August 9, 2012 a conference was held with counsel for each party and the court evaluator to discuss the structure of the proposed guardianship. Afterwards a proceeding was held on the record in which Dr. Dworerki agreed to the appointment of an “interim special guardian for a trial period.”  This trial period was for five months.

On August 10, 2012 the court issued an order appointing Sabrina Morrisey, Esq. as interim special Guardian and stated that Mr. Muster could continue to assist Dr. Dworecki in paying bills but revoked Mr. Muster’s power of attorney.

From August 2012 until January 2013, Ms. Morrissey helped implement many different forms of assistance for Dr. Dworecki.  A status conference was held on January 16, 2013 in which Dr. Dworecki’s appearance was waived due to inclement weather.   At this status conference Dr. Dworecki’s attorney stated that:

“I think that the temporary guardianship would be easier for our client to accept and consent to if there were a joint temporary guardianship with Ms. Morrissey and Mr. Muster under those circumstances.  And Mr. Muster has indicated that he would defer to Ms. Morrissey on all matters of the person with respect to that.  And they could deal with that as a joint capacity. Our client certainly, if Mr. Muster and Ms. Morrissey, together, given the relationship that has developed, were indicated to be the joint temporary guardians, [Dr. Dworecki] would consent to that arrangement.”


This consent is where many problems in the case stemmed from.

Both the majority and dissent agree that consent cannot be obtained from counsel without the AIP present.  The majority states:

“We agree with the dissent that a court should not accept counsel’s representation that the AIP has consented to the appointment of a guardian where the AIP is not present. Pursuant to article 81 of the Mental Hygiene Law, the court must first determine whether the AIP has the requisite capacity to consent, and must the make a finding of the AIP’s agreement to the terms of the guardianship, on the record.”


The dissent states:


“In order to obtain the consent necessary to avoid the need of an affirmative adjudication of incapacity before instituting a guardianship, the court must inquire of the client herself to ensure that she agrees to the guardianship and its terms.  This, the court failed to do, relying instead on counsels presumed consent on behalf of his client.”


Another important point in the history of this case, was the consent agreed to by counsel to the AIP appeared conditional on Mr. Muster continuing as the financial “power of attorney” for Dr. Dworecki’s funds.   However, the trial court, removed Mr. Muster stating that he had a conflict of interest as executor and primary beneficiary of Dr. Dworecki’s Last Will and Testament. The terms of the proposed order had Mr. Muster as nominal co-guardian limiting him to paying the day to day expenses of Dr. Dworecki but no longer controlling the rest of her finances, a job which Mr. Muster had done for the previous 22 years. It also appears there was no showing of misfeasance or malfeasance by Mr. Muster. 

In the case at bar, both the majority and dissent agree that the court erred in appointing a guardian based on counsels “consent.” The majority however stated that the consent was not the basis of appeal and said the issues before them where sanctionable conduct by the AIP’s attorney and the denial of attorney’s fees for the AIP’s attorney.

In conclusion, three clear points have come from this decision. First, an attorney cannot consent to a guardianship on behalf of the AIP if the AIP is not present. Second, a court must determine if the AIP has the requisite capacity to consent. Finally, the terms in which an AIP consents must be on the record. The dissent believes that the issue of consent should be decided in this appeal while the majority believes this issue was not raised in the appeal.   Where the majority and dissent differ is on the events that follow the “consent” from the AIP’s attorney.  The majority believes that the AIP’s attorneys conduct was sanctionable for fraudulent and misleading statement while the dissent believes that the AIP’s attorney was zealously advocating for his client.


This article was published in the Brooklyn Barrister (https://www.brooklynbar.org/wp-content/uploads/Barrister_Feb_2016_BBA-Web.pdf )

I Have Been Appointed as Guardian in New York, Now What?

gaurdianship attorneyYou have now been appointed as Guardian of the Person and/or Property in New York. You have participated in the hearing and have been told by the judge that you will be acting as Guardian for the incapacitated person. Listed below are steps which must be taken to qualify as a Guardian after the hearing.

  • Review CAREFULLY the Order and Judgment appointing the Guardian of the person and property- The order explicitly lists out what is expected of the Guardian, the powers of the guardian, and the necessary duties that the guardian must fulfill.
  • Guardianship Training Class- The law requires that Guardians go through a training class. As Guardian of the Property the guardian must act as a fiduciary for the incapacitated person, and keep meticulous records. The class explains what is expected of the guardian by the Court.
  • Bond- the Order and Judgment will often set a surety bond to protect the assets of the Incapacitated Person. The bond is like an insurance policy, which is paid for from the incapacitated person’s money. If the guardian were to misappropriate the funds of the incapacitated person, the bond would secure the monies of the incapacitated person.
  • Oath and Designation- This is an oath from the Guardian designating the county clerk for service if the guardian cannot be located.
  • Commission- This states that the bond has been obtained and filed, and the oath and designation has been filed. It allows the person to begin acting as the Guardian and marshalling assets.
  • 90 day report- 90 days from filing the commission the guardian must submit a report to the court examiner, the person appointed to review the actions of the guardian, and to the court. The report lists the assets marshaled, the assets that have not been marshaled, and what actions are being taken on behalf of the incapacitated person.
  • Annual Accountings- Every year a report is due in May to the court examiner and the court. This report lists all the monies that were received and expended. The Guardian is responsible for keeping very detailed records and showing all the money that has come in and all the money that was spent on the incapacitated person.

Having an attorney help you with all these steps can help protect you as Guardian.

, please feel free to give us a call at (718) 875-2191 or request a consultation.

What is an adult guardianship and when is it needed?

Eleanor Roosevelt once said, “Today is the oldest you’ve ever been, and the youngest you’ll ever be again.” Unfortunately, no one has found the cure for aging and as we get older our bodies and mind can begin to deteriorate. A guardianship is a legal proceeding commenced by a loved one, nursing home, or friend because they believe that a person can no longer take care of their personal needs or their financial affairs. The person commencing the proceeding is called the petitioner and the person who the proceeding is regarding is called the alleged incapacitated person or AIP. During this proceeding, the petitioner must prove by clear and convincing evidence that the alleged incapacitated person has functional limitation and is in fact incapacitated and in need of a guardian.

Guardianships are expensive and when contested can become very costly. A guardianship may not be necessary with proper estate planning. A person can plan for their potential incapacity and have an agent appointed for their financial affairs by executing a durable power of attorney. They can plan for their personal needs by executing a healthcare proxy designating an agent to make medical decisions in the event of their incapacity. All in all, proper estate planning is necessary and can possibly help prevent an expensive guardianship proceeding.

What happens when there is a Guardianship proceeding for my Elderly Parent?

The Guardianship proceeding can be difficult to understand. There are many different participants in the Guardianship proceeding.

The first participant is called the petitioner. This is the person that starts the guardianship proceeding. Many times this is a concerned family member who wants to take care of an Elderly parent’s health care decisions and financial well being. When the petitioner starts the proceeding, the lawyer for the petitioner or the petitioner themselves submits two documents to the court. These documents are the order to show cause and the petition.

 The Petition outlines why the alleged incapacitated person (AIP) is in need of a guardian. The petition normally outlines instances when the alleged incapacitated person was in need of assistance and why the alleged incapacitated person needs assistance, lists financial assets of the alleged incapacitated person, lists if there were any estate planning documents of the alleged incapacitated person, and asks the court to grant the petitioner power over the alleged incapacitated person.

 The order to show cause is also submitted to the court. This document outlines the powers that the Guardian is looking to obtain. It informs the alleged incapacitated person of their rights and the powers that may be taken from them if the petition is granted. This document also sets the time and place of the Guardianship hearing. It orders the petitioner to put on their case (show cause) why a guardian should be appointed for the alleged incapacitated person at a specific date and time. The order to show cause also adds two new participants to the guardianship proceeding, the court evaluator and counsel to the alleged incapacitated person.

 The court is obligated to provide representation to the alleged incapacitated person under MHL 81.10. The alleged incapacitated person also has the right to retain their own counsel as well. Counsel to the alleged incapacitated person will speak with the alleged incapacitated person, find out if advance directive has been executed, and will represent the alleged incapacitated person’s position.

 The court evaluator is appointed by the court to investigate the allegations in the petition and provide the court a report as to the court evaluator’s findings. The court evaluator acts as the eyes and ears of the court and tries to provide a complete view of the circumstances involved in the guardianship proceeding. This involves the court evaluator conducting interviews with the alleged incapacitated person, the petitioner, and all parties involved. The court evaluator may review financial statements of the alleged incapacitated person, attempt to locate any estate planning documents, and may review health care records.

 The Petitioner, Court Evaluator, and Counsel to the Alleged Incapacitated Person are all participants in the Guardianship proceeding. If you would like to inquire about any of our guardianship services, feel free to give us a call at (718)875-2191 or fill out a contact form or request a consultation.