You are here: / / THE “ALLEGEDLY INCAPACITATED PERSON” (AIP) WAS NOT PRESENT...
, ,

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.

 

You might also like
SPECTATOR’S CLAIM JURORS REFERRED TO DEFENDANT AS A ‘SCUMBAG’ WAS NOT CREDIBLE, TRIAL JUDGE PROPERLY DECIDED A JUROR-BIAS (BUFORD) HEARING WAS NOT REQUIRED (FOURTH DEPT).
EVEN THOUGH DEFENDANT CLAIMED THE STABBING INJURIES WERE ACCIDENTAL, HE WAS ENTITLED TO A JURY INTSTRUCTION ON THE JUSTIFICATION DEFENSE (FOURTH DEPT).
Child Support Awarded to Wife Even though Husband Awarded Sole Custody; Residency Shared Equally/Husband Has Much Higher Income than Wife
Landlord Failed to Eliminate Triable Issues of Fact Concerning Whether He Had Constructive Notice of the Presence of Lead Paint
FAMILY COURT DID NOT GIVE RESPONDENT ANY TIME TO PREPARE FOR THE CHILD SUPPORT HEARING AND INDICATED SHE HAD PREDETERMINED THE OUTCOME; ORDER REVERSED (FOURTH DEPT).
HERE PETITIONERS’ HOUSE WAS DESTROYED BY FIRE AND THE COURT-ORDERED APPRAISAL OF THE AMOUNT OF THE LOSS WAS SET ASIDE THROUGH NO FAULT OF THE PETITIONERS; THE PETITIONERS WERE THEN ENTITLED TO SUE TO SEEK FULL RECOVERY UNDER THE INSURANCE POLICY; THE JUDGE SHOULD NOT HAVE ORDERED FURTHER APPRAISAL PROCEEDINGS (FOURTH DEPT). ​
IN THIS COMMON LAW DISSOLUTION ACTION, PLAINTIFF WAS ENTITLED TO PAYMENT BY THE CORPORATION OF HIS EXPENSES FOR DEFENDING AGAINST THE CORPORATION’S COUNTERCLAIMS, AND PLAINTIFF’S MOTION TO PROHIBIT THE DEFENDANTS FROM USING CORPORATE FUNDS TO DEFEND AGAINST THE COMMON LAW DISSOLUTION ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
No Assets Left to Distribute—Disposition of a Painting Which Was Part of the Estate and Had Been Donated to a Museum Could Be Protected by the Attorney General (Charged with Protecting the Donor’s Wishes)–No Need to Issue Letters of Administration to Petitioner to Ensure Proper Use of the Painting

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

FAILURE TO COMPLY WITH THE EMPLOYER’S DIRECTIVE TO TAKE THE COVID-19 VACCINE... HERE THE EVIDENCE WAS PURELY CIRCUMSTANTIAL; DEFENDANT’S REQUEST FOR A...