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.

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 ( )