Article 81 of the NYS MHL became effective in April 1993 and has undergone several amendments, the most recent being in December, 2004 and July 2008.

When a guardianship proceeding is brought, a Court is asked to make a determination as to the capacity of an individual to manage his or her “person” and/or “property.” The Court must also determine the appropriateness of the proposed Guardian and the appropriateness of the personal care and property management powers which the Guardian seeks to have over the incapacitated person. These powers cover a broad range from making routine medical decisions, to deciding where the incapacitated person should live to deciding whether to sell their home and how to invest their money.

There are often many other issues raised in the proceeding such as revocations of powers of attorney, misappropriation of the property by the agent under the power of attorney, asset transfers and implementation of a Medicaid plan etc., but the Court must always first answer the question of whether the individual is incapacitated.

If an individual has the foresight to implement advanced directives such as a health care proxy, living will and/or a durable power of attorney, such directives may eliminate the need for a guardianship. In fact an Article 81 guardianship is to be the remedy of last resort and should only be granted when there are no other available “resources” like a durable power of attorney and health care proxy.

The goal of the current Article 81 statute is to provide flexibility to the guardianship system so that it can meet the varied and complex needs of the particular individual before the Court and, at the same time, allow that individual to maintain as much independence as possible.