A Full Service Law Firm

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VMM FAMILY INSTITUTE WEEKLY INSIGHTS: ARTICLE 81 OF THE MENTAL HYGIENE LAW

Our office specializes in the representation of families. We constantly receive questions concerning the power to appoint a guardian of the person and or property in the event that an individual is incapacitated. The Court may appoint a guardian for that person if the Court determines:

That the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, safety. The Court will have to resolve the issue of limitations that impair that individual’s ability to address their needs. An individual can agree to the appointment or the Court will conduct a hearing where the Court must be convinced by clear and convincing evidence that the person is likely to suffer harm because:

• The person is unable to provide for personal needs and or property management;
• The person cannot adequately understand and appreciate the nature and consequences of such inability.

In reaching its determination, the Court must give primary consideration to the functional level and limitations of the individual. These considerations include, but are not limited to:

• The management of the activities of daily living;
• An understanding of the nature and consequences of any inability to manage those activities;
• Preferences, wishes and values with regard to managing the activities of daily living; and/or
• The nature and extent of the person’s property and financial affairs.

If the Court believes there are limitations, then it will consider whether those limitations are adequately addressed by available resources and who should be appointed as guardian. The Court will then ascertain the scope of the guardian’s powers so that is consistent with the least restrictive alternative standard.

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