§ 81.21 — Powers of guardian; property management

New York § 81.21

• Jurisdiction: New York
• Law MHY: Mental Hygiene
• Title E: General Provisions
• Art. 81: Proceedings For Appointment of a Guardian For Personal Needs or Property Management

Text

§ 81.21 Powers of guardian; property management.\n (a) Consistent with the functional limitations of the incapacitated\nperson, that person's understanding and appreciation of the harm that he\nor she is likely to suffer as the result of the inability to manage\nproperty and financial affairs, and that person's personal wishes,\npreferences, and desires with regard to managing the activities of daily\nliving, and the least restrictive form of intervention, the court may\nauthorize the guardian to exercise those powers necessary and sufficient\nto manage the property and financial affairs of the incapacitated\nperson; to provide for the maintenance and support of the incapacitated\nperson, and those persons depending upon the incapacitated person; to\ntransfer a part of the incapacitated person's assets to or for the\nbenefit of another person on the ground that the incapacitated person\nwould have made the transfer if he or she had the capacity to act.\n Transfers made pursuant to this article may be in any form that the\nincapacitated person could have employed if he or she had the requisite\ncapacity, except in the form of a will or codicil.\n Those powers which may be granted include, but are not limited to, the\npower to:\n 1. make gifts;\n 2. provide support for persons dependent upon the incapacitated person\nfor support, whether or not the incapacitated person is legally\nobligated to provide that support;\n 3. convey or release contingent and expectant interests in property,\nincluding marital property rights and any right of survivorship\nincidental to joint tenancy or tenancy by the entirety;\n 4. exercise or release powers held by the incapacitated person as\ntrustee, personal representative, guardian for minor, guardian, or donee\nof a power of appointment;\n 5. enter into contracts;\n 6. create revocable or irrevocable trusts of property of the estate\nwhich may extend beyond the incapacity or life of the incapacitated\nperson;\n 7. exercise options of the incapacitated person to purchase securities\nor other property;\n 8. exercise rights to elect options and change beneficiaries under\ninsurance and annuity policies and to surrender the policies for their\ncash value;\n 9. exercise any right to an elective share in the estate of the\nincapacitated person's deceased spouse;\n 10. renounce or disclaim any interest by testate or intestate\nsuccession or by inter vivos transfer consistent with paragraph (d) of\nsection 2-1.11 of the estates, powers and trusts law;\n 11. authorize access to or release of confidential records;\n 12. apply for government and private benefits;\n 13. marshall assets;\n 14. pay the funeral expenses of the incapacitated person;\n 15. pay such bills as may be reasonably necessary to maintain the\nincapacitated person;\n 16. invest funds of the incapacitated person as permitted by section\n11-2.3 of the estates, powers and trusts law;\n 17. lease the primary residence for up to three years;\n 18. retain an accountant;\n 19. pay bills after the death of the incapacitated person provided the\nauthority existed to pay such bills prior to death until a temporary\nadministrator or executor is appointed; and\n 20. defend or maintain any judicial action or proceeding to a\nconclusion until an executor or administrator is appointed.\n The guardian may also be granted any power pursuant to this\nsubdivision granted to committees and conservators and guardians by\nother statutes subject to the limitations, conditions, and\nresponsibilities of the exercise thereof unless the granting of such\npower is inconsistent with the provisions of this article.\n (b) If the petitioner or the guardian seeks the authority to exercise\na power which involves the transfer of a part of the incapacitated\nperson's assets to or for the benefit of another person, including the\npetitioner or guardian, the petition shall include the following\ninformation:\n 1. whether any prior proceeding has at any time been commenced by any\nperson seeking such power with respect to the property of the\nincapacitated person and, if so, a description of the nature of such\napplication and the disposition made of such application;\n 2. the amount and nature of the financial obligations of the\nincapacitated person including funds presently and prospectively\nrequired to provide for the incapacitated person's own maintenance,\nsupport, and well-being and to provide for other persons dependent upon\nthe incapacitated person for support, whether or not the incapacitated\nperson is legally obligated to provide that support; a copy of any court\norder or written agreement setting forth support obligations of the\nincapacitated person shall be attached to the petition if available to\nthe petitioner or guardian;\n 3. the property of the incapacitated person that is the subject of the\npresent application;\n 4. the proposed disposition of such property and the reasons why such\ndisposition should be made;\n 5. whether the incapacitated person has sufficient capacity to make\nthe proposed disposition; if the incapacitated person has such capacity,\nhis or her written consent shall be attached to the petition;\n 6. whether the incapacitated person has previously executed a will or\nsimilar instrument and if so, the terms of the most recently executed\nwill together with a statement as to how the terms of the will became\nknown to the petitioner or guardian; for purposes of this article, the\nterm "will" shall have the meaning specified in section 1-2.19 of the\nestates, powers and trusts law and "similar instrument" shall include a\nrevocable or irrevocable trust:\n (i) if the petitioner or guardian can, with reasonable diligence,\nobtain a copy, a copy of the most recently executed will or similar\ninstrument shall be attached to the petition; in such case, the petition\nshall contain a statement as to how the copy was secured and the basis\nfor the petitioner or guardian's belief that such copy is a copy of the\nincapacitated person's most recently executed will or similar\ninstrument.\n (ii) if the petitioner or guardian is unable to obtain a copy of the\nmost recently executed will or similar instrument, or if the petitioner\nor guardian is unable to determine whether the incapacitated person has\npreviously executed a will or similar instrument, what efforts were made\nby the petitioner or guardian to ascertain such information.\n (iii) if a copy of the most recently executed will or similar\ninstrument is not otherwise available, the court may direct an attorney\nor other person who has the original will or similar instrument in his\nor her possession to turn a photocopy over to the court for its\nexamination, in camera. A photocopy of the will or similar instrument\nshall then be turned over by the court to the parties in such proceeding\nunless the court finds that to do so would be contrary to the best\ninterests of the incapacitated person;\n 7. a description of any significant gifts or patterns of gifts made by\nthe incapacitated person;\n 8. the names, post-office addresses and relationships of the\npresumptive distributees of the incapacitated person as that term is\ndefined in subdivision forty-two of section one hundred three of the\nsurrogate's court procedure act and of the beneficiaries under the most\nrecent will or similar instrument executed by the incapacitated person.\n (c) Notice of a petition seeking relief under this section shall be\nserved upon:\n (i) the persons entitled to notice in accordance with paragraph one of\nsubdivision (e) of section 81.07 of this article;\n (ii) if known to the petitioner or guardian, the presumptive\ndistributees of the incapacitated person as that term is defined in\nsubdivision forty-two of section one hundred three of the surrogate's\ncourt procedure act unless the court dispenses with such notice; and\n (iii) if known to the petitioner or guardian, any person designated in\nthe most recent will or similar instrument of the incapacitated person\nas beneficiary whose rights or interests would be adversely affected by\nthe relief requested in the petition unless the court dispenses with\nsuch notice.\n (d) In determining whether to approve the application, the court shall\nconsider:\n 1. whether the incapacitated person has sufficient capacity to make\nthe proposed disposition himself or herself, and, if so, whether he or\nshe has consented to the proposed disposition;\n 2. whether the disability of the incapacitated person is likely to be\nof sufficiently short duration such that he or she should make the\ndetermination with respect to the proposed disposition when no longer\ndisabled;\n 3. whether the needs of the incapacitated person and his or her\ndependents or other persons depending upon the incapacitated person for\nsupport can be met from the remainder of the assets of the incapacitated\nperson after the transfer is made;\n 4. whether the donees or beneficiaries of the proposed disposition are\nthe natural objects of the bounty of the incapacitated person and\nwhether the proposed disposition is consistent with any known\ntestamentary plan or pattern of gifts he or she has made;\n 5. whether the proposed disposition will produce estate, gift, income\nor other tax savings which will significantly benefit the incapacitated\nperson or his or her dependents or other persons for whom the\nincapacitated person would be concerned; and\n 6. such other factors as the court deems relevant.\n (e) The court may grant the application if satisfied by clear and\nconvincing evidence of the following and shall make a record of these\nfindings:\n 1. the incapacitated person lacks the requisite mental capacity to\nperform the act or acts for which approval has been sought and is not\nlikely to regain such capacity within a reasonable period of time or, if\nthe incapacitated person has the requisite capacity, that he or she\nconsents to the proposed disposition;\n 2. a competent, reasonable individual in the position of the\nincapacitated person would be likely to perform the act or acts under\nthe same circumstances; and\n 3. the incapacitated person has not manifested an intention\ninconsistent with the performance of the act or acts for which approval\nhas been sought at some earlier time when he or she had the requisite\ncapacity or, if such intention was manifested, the particular person\nwould be likely to have changed such intention under the circumstances\nexisting at the time of the filing of the petition.\n (f) Nothing in this article imposes any duty on the guardian to\ncommence a special proceeding pursuant to this article seeking to\ntransfer a part of the assets of the incapacitated person to or for the\nbenefit of another person and the guardian shall not be liable or\naccountable to any person for having failed to commence a special\nproceeding pursuant to this article seeking to transfer a part of the\nassets of the incapacitated person to or for the benefit of another\nperson.\n