Article 81 Guardianship
Article 81 Guardianship is a statute within New York’s Mental Hygiene Law that allows for a court-appointed guardian to oversee the affairs of an individual who is unable to do so themselves. In New York, Article 81 Guardianship is mostly used for elderly adults who have become incapacitated as a result of physical illness, cognitive impairment, mental disability, trauma, or other conditions. At Morgan Legal Group, P.C. our attorneys can assist with establishing an Article 81 Guardianship for any incapacitated senior who is unable to manage their personal or financial affairs. We have years of experience in helping individuals and families who are facing the decline of a loved one’s physical or mental health. Our attorneys understand the necessity of a guardianship for these individuals and have the expertise needed to ensure that the right type of guardianship is established. Petitioning an Article 81 Guardianship and creating a framework for what decisions will be made for an incapacitated individual can be overwhelming. As such a practiced attorney is required to help navigate the legal aspects of this process and to secure the best solution for the incapacitated person and their family.
If your family member or loved one is in need of guardianship for their personal or financial affairs, reach out to us at Morgan Legal Group, P.C. Our attorneys can guide you through the legal proceedings surrounding an Article 81 Guardianship and ensure that your loved one’s needs are taken care of.
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Questions And Answers
The state of New York implements two different statutes that superintend the establishment of a guardianship. An Article 17A Guardianship is created for children nearing the age of 18 who are intellectually or developmentally disabled and would be unable to manage their own affairs even as adults. It provides a way for parents to continue to be the legal caregivers for an adult child living with a disability. Article 81 Guardianship is usually used for older individuals with diminished capacity. For example, an individual who once managed their affairs independently and then develops Alzheimer’s may no longer be able to make sound decisions on their own. In cases like these, an Article 81 Guardianship would be petitioned. Another difference between these two statutes is that Article 81 is much more formal and complex in terms the legal proceedings required to determine a person’s need for a guardianship as well as the design of the type of guardianship that will be required.
In order to implement Article 81, there needs to be evidence of a specific incapacity. Under Article 81, an incapacity means that an individual can come to harm because they are unable to manage themselves and/or their affairs and are unable to grasp the possible consequences of such an impairment. A person’s affairs encompass a wide range of subjects and activities including personal needs, property management, activities of daily living, and deciding on major medical procedures, among others. With Article 81 Guardianship, the inability to carry out one of these critical functions can warrant the appointment of a guardian to help care for the incapacitated individual in that one area. For example, an individual who can still attend to their personal needs and daily activities but cannot safely manage their financial accounts could be given a guardian with the authority to handle their finances. Every individual’s functional levels and functional limitations are different, so every guardianship will be different as well.
Under Article 81, a guardian can be any person over the age of 18. A guardian can also be a corporation, public agency such as social services, or any individual who is concerned with the wellbeing of the incapacitated person. The incapacitated person may also nominate someone to be their guardian. For the most part, courts appoint family members as the individual’s guardian. In cases where there are disagreements within a family as to who should be designated as a guardian, the court will appoint an independent guardian. A court will also decide on a guardian if there are no family members or friends who wish to be appointed.
Article 81 is designed to allow an incapacitated individual as much autonomy as possible. As such, guardians are granted only the most necessary authority over an individual’s affairs. Since each guardianship will be tailored to the specific needs of an incapacitated person, it means that there are numerous guardianship options. However, one of the most common issues that requires the aid of a guardian is finances. Diminished mental capacity can make it difficult for a person to keep track of bills, investments, assets, and other financial matters. In cases like these, a guardian can obtain legal authority to manage the incapacitated person’s monetary interests. Another area that can require guardianship is that of self-care. Many elderly persons find it increasingly difficult to perform activities such as bathing, grooming, toileting, and even eating. Neglecting personal care can have dire consequences. As such, a guardian can be given the necessary power to prevent self-neglect and provide appropriate care to the incapacitated individual.