Sometimes You Feel Like A Guardian

In New York State, a person who’s having trouble getting around, or experiencing mental illness or decline, can consent to the appointment of a Guardian to help them manage their affairs.  In Matter of Buffalino, 39 misc. 3d 634 (N.Y. Sup. Ct., Suffolk County, Mar. 5, 2013), the court explains the implications of this law for incapacitated persons:

Allowing an alleged incapacitated person to consent to a guardianship permits him or her to sidestep the issue of incapacity, maintain a greater degree of dignity, and assists the petitioner in maintaining a relationship with the individual alleged to be in need of a guardian, which is often strained by the commencement of such a proceeding.  Courts frequently, therefore, will permit individuals to consent to the appointment of a guardian.  The problem inherent in the use of consent guardianships is that if the individual, subsequent to the appointment of the guardian, either refuses or becomes incapable of consenting to a necessary expansion of powers, the streamlined procedure provided by Mental Hygiene Law § 81.36 is unavailable.  In such a situation it is necessary to file a new application to appoint a guardian wherein the person’s incapacity can be established.

Why go through all the trouble of a new proceeding if the Principal has already consented to a guardianship?  The court explains:

A consent guardianship is created on the basis of the individual’s agreement thereto and it does not morph into a non-consent guardianship with it’s inherent finding of incapacity because an emergency occurs and an expansion of powers becomes necessary.  Granting an application to expand powers pursuant to Mental Hygiene Law § 81.36 without the individual’s consent would effectively be a declaration of incapacity without a hearing to determine said incapacity.  Such a procedure is not authorized by Mental Hygiene Law § 81.36 and would violate the essence of the protections provided to alleged incapacitated individuals by the drafters of Article 81 of the Mental Hygiene Law.  It would also trample on the individual’s due process rights.

Boom.  That last sentence.  Due Process.  Always making it harder to take away peoples’ rights.  Real stick in the eye.

But Due Process is the reason why we sometimes have to go through seemingly redundant or arbitrary “make-work” procedures to accomplish a legal result.  Rights matter, and it’s not in anyone’s interest to have the process by which rights are taken away “streamlined.”  It should be difficult to judge someone incapacitated because it’s a big deal.  You are taking away their legal right to perform any meaningful act in the eyes of the law.  Such a massive deprivation of rights ought to be gummed up by procedure.  Perhaps it inefficient and costly.  But it’s better than the alternative.

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