Guardianship FAQ

1. What is an Article 81 Guardianship?
2. What Does Incapacitated Mean?
3. What is a Guardianship Hearing?
4. What is an Alleged Incapacitated Person?
5. What is a Court Evaluator?
6. Is a Named Executor Required to Probate a Last Will?
7. Can a Beneficiary of an Estate also Act as the Estate Executor?
8. What is Ancillary Probate?
9. What is the Surrogate’s Court?
10. What is a Health Care Proxy?
11. What is a Living Will?
12. What is a Living Trust?

1. What is an Article 81 Guardianship?

Article 81 of the New York Mental Hygiene Law provides for the appointment of a Guardian. A Guardian can be appointed when a person is determined to be incapacitated. There are Guardians for property management and also for personal needs. The Court holds a hearing to determine if a Guardian is necessary.

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2. What Does Incapacitated Mean?

Pursuant to the Guardianship statute a person is incapacitated when due to some disability he cannot make property or personal decisions and cannot appreciate his inability to make these determinations and as a result is likely to suffer harm. The Court hears evidence before it decides if someone’s incapacitated.

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3. What is a Guardianship Hearing?

Before the Court appoints a Guardian it must hold a hearing to determine whether the appointment of a Guardian is appropriate. Testimony and other evidence is presented to the Court regarding the alleged incapacitated person’s ability to function and attend to various activities of daily living.

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4. What is an Alleged Incapacitated Person?

This is the individual who is the subject of a Guardianship proceeding. The Guardianship petition seeks to have a Guardian appointed for a named person who is referred to as an Alleged Incapacitated Person.

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5. What is a Court Evaluator?

This is an individual appointed by the Court in an Article 81 Guardianship proceeding to conduct an investigation and report to the Court regarding the proposed Guardianship appointment. The Court Evaluator is not an advocate. He interviews the various parties and reviews all relevant documents and provides a report to the Court which includes a recommendation as to whether a Guardian should be appointed and who should be the Guardian.

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6. Is a Named Executor Required to Probate a Last Will?

A person who is named as an Executor in a Will and who is in possession of an original Will is not obligated to offer the Will for probate. If such person or any other person who is in possession of the original of a Last Will refuses to file the Will with the Court, an interested party can file a proceeding with the Surrogate’s Court to force the Will to be filed.

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7. Can a Beneficiary of an Estate also Act as the Estate Executor?

There is no limitation or rule to prevent an estate beneficiary from serving as the Executor of the estate.

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8. What is Ancillary Probate?

Ancillary probate is a probate proceeding that takes place in a State outside of the original probate filing. This typically occurs so that real estate in another State can be transferred. For example, if the decedent’s original probate proceeding was in New York and he owned real estate in New Jersey, an ancillary probate proceeding would be filed in New Jersey.

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9. What is the Surrogate’s Court?

This Court is the primary judicial body that deals with issues concerning a decedent’s estate. This includes probate proceedings, administration proceedings and related matters. There is a Surrogate’s Court in each County. The following is a list of some of these Courts and their locations in the New York metropolitan area:

New York Surrogate’s Court (Manhattan)
31 Chambers Street
New York, NY 10007

Kings County Surrogate’s Court (Brooklyn)
2 Johnson Street
Brooklyn, New York 11201

Queens County Surrogate’s Court (Queens)
88-11 Sutphin Boulevard
Jamaica, New York 11435

Bronx County Surrogate’s Court (Bronx)
851 Grand Concourse
Bronx, New York 10451

Richmond County Surrogate’s Court (Staten Island)
18 Richmond Terrace
Staten Island, NY 10301

Nassau County Surrogate’s Court
262 Old Country Road
Mineola, New York 11501

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10. What is a Health Care Proxy?

This is a document provided for by the New York Statutes by which an individual designates another person to make health care decisions in the event they are not able to do so for themself.

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11. What is a Living Will?

This is a document by which a person can express their intent that they do not want life sustaining treatment in certain circumstances.

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12. What is a Living Trust?

A Living Trust or a Revocable Grantor Trust is a trust created during a person’s life-time. The trust typically holds the grantor’s property and provides for its disposition upon death. The trust is revocable and can provide for property management in the event the grantor becomes disabled.

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