Rochester Guardianship Lawyers

Rochester Guardianship Lawyers

The dedicated Rochester guardianship lawyers at Friedman & Ranzenhofer are highly experienced in assisting Western New York residents file for guardianship. We are happy to assist you in every step of the guardianship process.

NY Guardianships FOR INCAPACITATED Persons

NY Guardianships for Children and Developmentally Disabled People

New York governs the appointment, duties and authority of a guardian of an infant (any child under the age of 18). A guardian may be appointed of the person and property, of the person only, or of the property. The proceeding is brought in the Surrogate’s Court of the County where the infant is domiciled or if he/she is a non-domiciliary but has property situate in that County. If an infant is to receive monies over the amount of $10,000.00 pursuant to the terms of a Will, by the laws of intestacy, or by a wrongful death proceeding, a petition for guardianship is required by the Court. New York also governs the appointment, duties and authority of a guardian of mentally retarded and/or developmentally disabled persons. Mental retardation means sub-average intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior. An individual like this, is a person that has been certified by a licensed physician and a licensed psychologist as being incapable to manage themselves and their affairs by reason of mental retardation or developmental disability and that such condition is permanent in nature or likely to continue indefinitely. A developmentally disabled person (DDP) is a person whose disability:

1. Is attributable to cerebral palsy, epilepsy, neurological impairment, autism or traumatic head injury.
2. Is attributable to any other condition of a person found to be closely related to mental retardation, because such condition results in similar impairment of general intellectual functioning or adaptive behavior to that of mentally retarded persons.
3. Is attributable to dyslexia from a disability described in subdivisions one or two (above) or mental retardation.
4. Originates before such person attains age twenty-two, provided, however, that no such age of origination shall apply to a person with traumatic head injury.

These laws apply to the appointment of a guardian of the person and property, the person only, or the property only of either a mentally retarded infant or a mentally retarded adult (MR) and/or a developmentally disabled person (DDP). If a guardian is appointed for a mentally retarded and/or developmentally disabled infant, the guardianship does not terminate upon the infant reaching maturity.

Rochester Guardianship Lawyers Protecting You and Your Family

Guardianship is a very important legal tool that can be used to protect your loved one. Unfortunately, the process, standards and procedures can be very complicated. Our attorneys have served as legal counsel in many guardianship cases, a significant number of them contested. We are proficient at navigating the courts and the duties that must be followed to not only pursue guardianship, but also maintain it.

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NY MHL Article 81 Guardianship Court Case FAQS

1. Is Medical Testimony Required for Appointment of a NY MHL Article 81 Guardians?
2. No.

AIP was properly found to be incapacitated. She was 82-years old, found in her home by APS  without running water, food, electricity, or heat, malodorous and frail. She was unable to cook, and was known to wander away from her home. She had forgotten where she banked and did not know her sources of income. Although she owned a home and possessed approximately $115,000 in savings, she was delinquent on her utility bills. Based on these facts, the hearing record established by clear and convincing evidence that AIP lacked the understanding or appreciation of the nature and consequences of her functional limitations. Thus, the Supreme Court’s finding that she was an incapacitated person requiring a guardian was proper notwithstanding the lack of medical testimony regarding her medical condition. Matter of Ardelia R., 28 A.D.3d 485; 812 N.Y.S.2d 140 (2nd Dept 2006). Appellate Division finds that trial court violated the violated the physician – patient privilege by admitting the testimony of the AIP’s treating physician and that AIP did not waive the privilege by affirmatively placing her medical condition in issue. However, it finds such violation to be harmless error since medical testimony is not required in an guardianship proceeding and the non-medical testimony established that the IP was unable to function to care for her medical, personal and financial needs. Matter of Bess Z., 27 A.D.3d 568; 813 N.Y.S.2d 140 (2nd Dept., 2006). The Appellate Division re-emphasized that the rules of evidence apply in an Article 81 proceedings but that a court, for good cause, may waive the rules in an uncontested proceeding. Specifically, the physician patient privilege applies and the AIP does not waive it by contesting the application for guardianship if he does not specifically put his medical condition at issue. In this case, even though it was a jury trial, the court found that the violation of the privilege was harmless error since medical testimony was not required and there was sufficient independent evidence of functional incapacity based upon non-medical evidence. Matter of Rosa B., 1 A.D.3d 355; 767 N.Y.S.2d 33 (2nd Dept., 2003). Medical testimony is not required in all Article 81 proceedings. Article 81 does not mandate medical testimony and, even when medical testimony might be necessary, an individual’s disease or underlying medical condition is only one factor to be considered since focus of Article 81 is one’s functional limitations. Functional limitations can be determined without medical testimony, since non-medical person can determine whether individual is capable of dressing, shopping, cooking, managing assets, and performing other similar activities. Also, Article 81 provides for guardianship tailored to meet individual’s needs, and to create limited guardianship. Matter of Kustka, 163 Misc.2d 694; 622 N.Y.S.2d 208 (Sup. Ct., Queens Cty., 1994. AIP appellant alleged that trial court’s decision to appoint guardian was based largely on psychiatric testimony, and contends that she should have been afforded opportunity to challenge that testimony 286 with the testimony of a court-appointed independent psychiatrist. Appellate court found that trial court based its determination upon statements and testimony of all witnesses, not merely upon psychiatric testimony, and held that nothing in Article 81 mandates medical testimony in guardianship proceeding. Matter of Rimler (Richman), 164 Misc.2d 403; 224 A.D.2d 625; 639 N.Y.S.2d 390 (2nd Dept., 1996); lv. to app. denied 88 N.Y.2d 805; 646 N.Y.S.2d 985 (1996). AIP was found locked in apartment into which he refused entry, requiring family to drill locks, found dressed in dirty clothes; unshaven, holding a bible surrounded by trash bags, debris, numerous containers of liquid appearing to be urine; strong small of feces present; and no running water in building. AIP owned several investment properties which were all in disrepair and in default of real estate taxes. Court concludes that AIP’s present functional level and functional limitations impair his ability to provide for personal needs and to manage property; that he cannot adequately understand and appreciate nature and consequences of such inability; and that he is likely to suffer harm because of such inability and lack of understanding. Court notes that AIP refused to speak to psychiatrist who nevertheless diagnosed him as bi-polar and paranoid schizophrenic, but noted that no such testimony was need to establish functional impairment.  Matter of Seidner, NYLJ, 10/8/97, p. 25, col. 1 (Sup. Ct., Nassau Cty.)(Rossetti, J.) Medical evidence upon which petitioner sought to rely was excluded because it was privileged. Privilege is not waived merely by defending an action and denying allegations, so long as defending party does not affirmatively assert his stable mental condition. AIP’s privacy concerns were particularly important here because of context of petition (bitter marital dispute). Matter of Donald Loury (Loury), 1993 N.Y. Misc. LEXIS 633; NYLJ, 9/23/93, p. 26, col. 2 (Surr. Ct., Kings Cty.)(Surr. Leone).

Read Our Free Stop Elder Abuse Guide Contact Friedman & Ranzenhofer today to schedule a legal consultation with our experienced Rochester Guardianship Attorneys. Let us help guide you through the process of protecting your loved ones. 

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