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THE “ALLEGEDLY INCAPACITATED PERSON” (AIP) WAS NOT PRESENT FOR THE MENTAL HYGIENE LAW GUARDIANSHIP HEARING; THE AIP’S ATTORNEY CANNOT CONSENT TO THE APPOINTMENT OF A GUARDIAN IF THE AIP IS NOT PRESENT; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the absence of the allegedly incapacitated person (AIP) from the proceeding to appoint a guardian pursuant to the Mental Hygiene Law required remittal:

“Guardianship proceedings, as a drastic intervention in a person’s liberty, must adhere to proper procedural standards” … . Pursuant to Mental Hygiene Law § 81.11, where a petition to have a guardian appointed for an AIP has been filed … , “[a] determination that the appointment of a guardian is necessary for a person alleged to be incapacitated shall be made only after a hearing” … . Any party to the proceeding “shall” have the right to present evidence, call witnesses, cross-examine witnesses and be represented by counsel … .

Most importantly, “[t]he hearing must be conducted in the presence of the person alleged to be incapacitated, either at the courthouse or where the person alleged to be incapacitated resides” … , unless the person is outside the state or “all the information before the court clearly establishes that (i) the person alleged to be incapacitated is completely unable to participate in the hearing or (ii) no meaningful participation will result from the person’s presence at the hearing” … . “There is an ‘overarching value in a court having the opportunity to observe, firsthand, the allegedly incapacitated person’ ” … .

Here, the court did not conduct a hearing in the presence of the AIP. Although the court evaluator informed the court that “[a]ll of the parties here right now agree that the AIP needs a guardian,” it is unclear whether that statement by the court evaluator constitutes an agreement by the AIP’s attorney to the court’s determination to appoint a guardian for all of the AIP’s person and property. Regardless, even if we were to deem this a situation where the AIP’s attorney agreed that the AIP consented to the appointment, “a court should not accept counsel’s representation that the AIP has consented to the appointment of a guardian where the AIP is not present” … . “[T]he court must first determine whether the AIP has the requisite capacity to consent, and must then make a finding of the AIP’s agreement to the terms of the guardianship, on the record” … . Matter of Chang v Billie J.C.-W., 2025 NY Slip Op 02446, Fourth Dept 4-25-25

Practice Point: A Mental Hygiene Law guardianship hearing must be held in the presence of the allegedly incapacitated person (AIP) absent proof the AIP cannot meaningfully participate. The judge should be able to observe the AIP.

Practice Point: The AIP’s attorney cannot consent to the appointment of a guardian in the AIP’s absence.

 

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