* By: Anthony J. Enea, Esq.
Effective December 13, 2004, Article 81 of the Mental Hygiene Law ("MHL"), relevant to the appointment of a Guardian of the person and property of an incapacitated person, is amended by Chapter 438 of the Laws of 2004, which were approved on September 14, 2004. While many of the revisions are of a technical nature, there are a number of substantive changes that are noteworthy. They are as follows:
A. §81.07 of the MHL is amended to provide that the hearing date is to be set no more than 28 days from the date in which the Order to Show Cause is signed. Previously the statute required that the hearing was to be set no more than 28 days from the filing of the Petition. This Amendment was in my opinion necessary, because, it was unrealistic to expect that the Order to Show Cause would be signed on the same day the Petition was filed. In fact, most hearings were not set within the required 28 day period. The Amendment will insure that a full 28 days pass from the date the Order to Show Cause is signed, and the hearing is set.
B. §81.13 of the MHL is amended to provide that within 7 days after the hearing, the Court must render its decision. The Court can extend this 7 day period for good cause shown. The statute previously required that the Court was required to render its decision within 45 days of the date the Order to Show Cause was signed, unless good cause was shown. The 45 day rule in my experience was rarely complied with, because, often the hearing was not held within the 45 day period. Although, this 7 day period appears to be more realistic, because, of the heavy caseload in many Guardianship Parts, it may unfortunately be difficult to achieve.
C. §81.07 (b) (3) of the MHL is amended to specifically prohibit any Court from requiring that the supporting papers to the Petition for Guardianship, contain any medical information, for example: a doctor's affidavit. This Amendment addresses an issue that was previously wholly ignored in Article 81, as no mention of medical information being required or not was contained therein. This lead to inconsistencies from one Guardianship Part to another, and from case to case.
D. §81.07 of the MHL relevant to service and notice of the proceedings, is amended to provide that the Petition and any supporting papers be only served upon the AIP, the Court Evaluator (if one has been appointed) and the AIP's Counsel. This Amendment will help insure that medical information of a private and confidential nature is not unnecessarily disseminated to persons whom would not normally have access to it.
Any interested parties other than the three (3) above mentioned only need to be provided with a Notice of the proceedings, which consists of the name and address of the AIP, the persons to be served and the name, address and telephone number of the attorney for the Petitioner.
E. Section 81.11(f) of the MHL has been amended to provide that the only party that can demand a jury trial with respect to the issue of incapacity is the alleged incapacitated person ("AIP") and/or the AIP's attorney. While I can understand the need to afford the AIP as many protections as possible, I believe that the Petitioner should be afforded the opportunity to request a Jury Trial, especially, in cases involving issues of undue influence or fraud being perpetrated upon the AIP.
F. Section 81.03 of the MHL has been amended to expand the definition of "Available resources" to include a health care proxy. The statute prior to its amendment, with respect to the documents considered as "Available resources" had only referred to powers of attorney, trusts and representative and protective payees. Health Care Proxies were inexplicably missing from the list of available resources. From a practical perspective, this amendment gives statutory recognition to a document that is commonly relied on by Elder Law attorneys as being an "available resource", and is regularly attached to a Guardianship Petition.
G. §81.29 of the MHL is amended to allow the Court to revoke a power of attorney, where the Court finds that there has been a breach of fiduciary duty by the agent. Unlike §81.29 prior to its amendment, it is now irrelevant whether or not the power of attorney was executed prior to incapacity or while the person was incapacitated.
The above stated in not intended to be an all inclusive review of the Amendments made to Article 81, but, a summary of what I believe are some of the most important and noteworthy amendments.