How do you expand powers in an Article 81 Guardianship?

daughter and her senior father holding hands

Article 81 of New York’s Mental Hygiene Law allows a court to appoint a guardian to manage the personal and/or financial affairs of an individual deemed incapacitated. The court must find that the alleged incapacitated person (“AIP”) cannot appreciate the nature and consequences of their inability to handle such matters and that the AIP is likely to suffer harm if a guardian is not appointed.

In a guardianship proceeding, there are two sets of powers at play: “personal needs” powers and “property management” powers. Personal needs powers relate to decisions people make in their everyday lives.  This includes healthcare decisions and where to live. Property management powers encompass powers related to managing financial affairs. Sometimes an AIP needs a guardian of the person and property, while other times an individual needs a guardian for only one of the two sets of powers.

The detailed powers of an appointed guardian are set forth in the Order appointing the guardian. Section 81.20 (a)(1) of the Mental Hygiene Law provides that “a guardian shall exercise only those powers that the guardian is authorized to exercise by court order.” Once in place, a guardianship lasts for the lifespan of the incapacitated person (“IP”), unless otherwise specified. As circumstances change, the Court may be further petitioned to expand or remove powers awarded to the guardian.

The court may expand the power of the guardian if it appears that such modification is necessary. The modification may only occur after a hearing on notice to the persons entitled to such notice. The hearing provides a means for determining whether the new powers are consistent with the IP’s needs. The burden of proof is on the person seeking expansion of powers.

Common examples of expansion of powers include Medicaid planning, the establishment of a trust and to change place of abode. If the IP requires long term care (at home or in a facility), the guardian may want to engage in Medicaid planning to preserve some of the assets. The guardian may need to gain authority to establish trusts or transfer assets. Property might have to be sold. In most cases, if the guardian wants to move the IP, court approval is mandatory. If the IP resides in the community and the guardian wants to move the IP into assisted living, this is an expansion of powers.

If the court grants the relief, the guardian will receive a new Order and Judgment or Supplemental Commission outlining the new powers. It is very important to understand the specific powers granted in the order and judgment. Guardianships in New York are strictly tailored to the particular circumstances. When unsure if a guardian has a particular power, consult an experienced guardianship attorney.

Burner Law Group, P.C.

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