Article 81 Introduction
Looking after [1] A trial proceeding in which one (guardian) has been appointed to make a decision on another person (ward) with regard to individual, medical, and / or financial problems. In New York, it is stipulated in Article 81 of the New York Mental Health Act (MHL), which came into effect on April 1, 1993, "Procedure for Appointment of Parents for Personal Needs or Property Management". Mechanism [2] While helping a court to meet a person's personal and / or financial needs, it is possible to limit such assistance with the minimum necessary infringing measures.
The criteria for the appointment of guardians under the law are not mental or physical specific medical condition but focus on the decision making capacity and functional limit of the person the guardian is considered. MHL § 81.02. Indeed, the courts in New York State may be psychologically involved in dementia, psychiatric disorders, or mental injuries, to include other forms of injuries, such as blindness and other physical weakness, drug and alcohol problems, The scope of application of Article 81 has been expanded beyond the conditions Poisoning.
General scenario that a guardian can help
The court of New York state appointed parents in the following situation.
1. People seeking decision-making for the elderly.
2. Parents try to make financial and personal decisions for adults' special needs and children with disabilities.
3. Parents need to make decisions for those who can not make responsible decisions due to cognitive impairment.
4. In cases where it is necessary to make urgent medical judgment on incompetent patients without prior instruction.
If an elder is unwillingly deprived of the nursing home such as a nursing home or other facility, abused or exploited, it is necessary to give temporary parents emergency rights to act immediately.
In one interesting example, a woman recently acquired a lot of money in a lottery and found that he could not help to give money to a person who took a lucky story. For example, she bought a new car because she was talking with a friend who said she really could use the new car. She could not resist this tension, but she noticed that she needed help to rule the money she got now.
In this article I emphasize the difference between people who are not necessity of Guardian (PING), but who are Alleged Incapacitated Person (AIP). Those who are in a coma or who are considered to have lost their abilities will consider AIP. Here, the woman who won the lottery was regarded as PING. In other words, people who are not disabled Itself Nonetheless, a guardian is necessary. In fact she adjudicates in a narrow sense the appointment of property guardian (ie, only making financial decisions, not personal or medical decision) to the court to restrict access and use to lottery procedures You can ask the court to do.
a "Nut and Bolt" Typical progression
The guardianship procedure begins with the submission of a petition that contains the necessary information on the proposed district (ie, the guardian is considered), its assets and income, the family of the proposed district and other people. Notice of proceedings Whether there is information on persons who have the right to receive, other prior directives, other circumstances. MHL § 81.08.
The specific authority to be purchased is described in detail. In the event of an emergency, or in other situations requiring immediate intervention, an indication for the appointment of a temporary guardian with specific immediate authority is included. MHL § 81.23.
A good example of this is when you need to immediately decide whether to perform a surgery or other emergency medical procedure on a comatose patient without a health care agent. This is especially true if the opinions do not agree on how the family will proceed. The Guardianship Court appoints a temporary or special guardian to investigate, talk with a doctor, make recommendations and report to the court.
The court shall (1) determine whether there are functional restrictions, (2) if the court finds that the court is a court judge (3) the guardian is not nominated, and if there is a high possibility that the person will be injured Any time, in other words, the observation of unstable and suspicious behavior is a point of these procedures over medical diagnosis.
The court often appoints a court appraiser who acts as a "court's eyes and ears" to investigate the situation, interview people and report to the court. MHL § 81.09.
The problem goes to a hearing where a testimony takes place. MHL § 81.11. There is a possibility that these procedures will be contested because there is a disagreement in opinion as to whether the family should become a guardian or what kind of action should actually be taken. Those who acquired the guardian can oppose the appointment of a guardian and can act on behalf of a lawyer (court appointment or your choice). MHL § 81.10.
Ask for the minimum means
Legislators were aimed at creating means to protect individuals using the least restrictive means when enacting Section 81 of the Mental Health Act. In addition, the law gives the court the authority to tailor lawyer's needs to the needs of lawyers. In Article 81, the court obliges the court to consider an alternative plan for the appointment of a guardian such as a visiting nurse, a home health nurse, an adult's day care, a trust, etc., a remedy which may include the appointment of a parent in a court We allow you to take measures. See, for example, MHL § 81.01.
Conclusion
Article 81 is a versatile remedy that serves for a wide variety of situations and further provides solutions to save lives. Because it is a complicated procedure with a serious implication and a court hearing is necessary, consulting with an experienced elderly lawyer familiar with this area of law is essential for anyone who thinks guardian.
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[1] In some states this procedure is called conservative.
[2] In addition to Article 81 of the Mental Health Act which definitely has the broadest application and flexibility in such matters, there are other mechanisms. The main example is Article 17 A of the Proxy Judicial Proceedings Act. Originally designed for mentally retarded people who newly died from mental facilities and were required for mental retarders who needed a safety net, this law was developed for people with developmental disabilities, especially cerebral palsy, autism, epilepsy, traumatic head injury And other neuropathic disorders must have occurred by the age of 22 years (such age does not apply to traumatic head injuries). In contrast to Article 81, Article 17 A simply requires that mental retardation or developmental disability is medically proven. Also, in extreme cases where there is a risk that a person is at risk of harming oneself or others, taking procedures under Article 9 of the Mental Health Act for individuals' involuntary promises.
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