Guardianships Under Article 81 of the Mental Hygiene Law: The Basics

By: Gary E. Bashian, Esq.*


“Non nobis solum nati sumus (Not for ourselves alone are we born)”

― Cicero

Over the past decade, many practitioners have found that there has been an ever-growing need to assist clients with the long-term personal and financial care of a family member or close friend who, due to aging, injury, and/or physical or mental decline, can no longer take care of themselves.

Although there are many ways to address this issue involving joint efforts between healthcare providers, counsel, family, and friends, there is no more effective way to protect an incapacitated person’s rights than having a Guardian appointed for them pursuant to Article 81 of New York’s Mental Hygiene Law.

Enacted in 1993, Article 81 of the Mental Hygiene Law revolutionized the way that State and the Judiciary approached the appointment of a person, or persons, to be the officially recognized decision maker for another who is unable to make financial and/or personal healthcare decisions for themselves. Unlike “Conservatorships” under the prior law, where a person suffered the stigma of being deemed judicially “incompetent,” a “Guardianship” allows for greater flexibility and compassion in dealing with the needs of incapacitated people. Recognizing that the “needs of persons with incapacities are as diverse and complex as they are unique to the individual,”[1] the legislature purposefully designed a means by which the dignity and self-determination of an incapacitated person in need of care could be preserved to the greatest degree possible.

The statute states that “[a] Guardian will be appointed only where it is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person; and that the person agrees to the appointment, or that the person is incapacitated…”[2]  An individual is considered “incapacitated” if it is proven, by clear and convincing evidence, that they are likely to suffer harm because they are “unable to provide for personal needs and/or property management; and the person cannot adequately understand and appreciate the nature and consequences of such inability.”[3]

The Article 81 Court manages this by developing an individualized assessment of the functional daily needs and activities of the incapacitated person (the “IP”), and then granting an appointed Guardian the power to intervene and act on behalf of the IP, but in the least restrictive form possible given the situation and circumstances. However, this tailor-made plan does not happen overnight; it involves the cooperation of many parties, can involve significant costs, and is largely achieved by following the expansive procedural framework set forth within Article 81 itself.

An Article 81 Guardianship Proceeding is commenced by filing a Petition with an attendant Order to Show Cause.[4] “Any individual over eighteen years of age, or any parent under eighteen years of age, who is found by the court to be suitable to exercise the powers necessary to assist the incapacitated person”[5] has standing to seek appointment as a Guardian. Guardians may be appointed over the Person and/or Property of an IP[6]. The Petition, a form that can be obtained from the State Court website, must contain specified language and information that informs the Court about the Person Alleged to be Incapacitated (the “AIP”)[7], the Petitioning party, and the facts that support the need for the appointment of a Guardian. There is no need or requirement for a medical doctor’s supporting Affidavit.

The Petition, or Cross-Petition by another person with standing who objects to the appointment of the Petitioner, can be supported by further evidence if necessary, such as Supporting Affirmations and/or Affidavits. The Order to Show Cause must also include required, formal language that the Court will revise as necessary given the situation and circumstances. In the Order to Show Cause, the Court may appoint a Court Evaluator, and, in the event that the AIP does not have private Counsel, will appoint Mental Hygiene Legal Services as attorney for the AIP to protect the AIP’s rights. The Order to Show Cause will also direct the means of service, the specific documents to be served, and the interested parties to be served, based on the information offered in the Petition.  Lastly, the Order to Show Cause will set a Hearing date, which by statute must be within thirty (30) days of the signing of the Order to Show Cause[8].

Where there are antagonistic and differing interests in a Guardianship Proceeding, a conclusion by the Court Evaluator that the AIP does not need a Guardian or that the Petitioner should not be appointed; and/or where the AIP, through their counsel, voices objections to the appointment of a Guardian, a contested Hearing will result. In order to avoid this it is always the best practice for counsel to reach out to the various parties and attorneys involved to determine whether or not it will be a contested or compromised proceeding[9].

The Court Evaluator will interview the AIP and the other interested parties, and prepare a report to review by the Guardianship Judge. Though not binding, the Evaluator’s report is usually persuasive as the Evaluator has contact with all of the parties, is experienced in Guardianship matters, and is trusted by the Court to provide an honest and forthright appraisal of the AIP’s situation. Importantly, the Evaluator’s report is only available for review by the parties for a brief period of time before the Hearing, and it is critical that it be carefully reviewed by counsel beforehand so that the Evaluator’s position, and reasoning, as offered to the Court is known.

Often, the parties concerns for the AIP are a common ground which – even if there is bitter disagreement about how the AIP should be cared for, and who should care for the AIP – should be used as a starting point for discussion and negotiation. No matter how heated or adversarial that these proceedings may become – and they can often be very acrimonious – so long as the parties involved keep in mind that they are in Court to protect the best interests of the AIP, some form of compromise can often be achieved pre-Hearing. Many Guardianship Parts encourage out of Court discussions between the interested parties so that any issues that can be resolved without Court intervention are addressed before the Hearing even takes place. Any compromises that can be reached will result in a shorter Hearing, and each party having at least some of the issues that they have voiced resolved.

As indicated above, the parties will have the opportunity to review the Evaluator’s report before the Hearing, and, depending on the County, there is a pre-Hearing conference with the Guardianship Judge, Counsel, the Evaluator and any other parties (usually State or County representatives) that can provide insight into the facts. This pre-Hearing conference is another opportunity for the Court to learn more about the AIP, their situation, and the parties that seek to be appointed Guardian. These pre-Hearing conferences typically involve comprehensive discussions about the respective parties’ positions, and the practical needs of the AIP. Although the formal Hearing is the official forum where the Guardianship Judge renders their opinion, have no doubt that the pre-Hearing conference is an essential part of the process, and one that can have can be very fruitful if handled correctly by well-prepared counsel who can clearly and succinctly present their case to the Court.

After the pre-Hearing conference, if a compromise is still not reached, then the parties will proceed to the formal, Judicial Hearing. Witnesses may be called, evidence introduced[10], and the Court will hear the arguments of each respective party. The AIP will almost always be present, unless there the Court is offered a good reason why they should not appear, and has granted permission that they can be absent.[11] Importantly, these Hearings do not need to strictly comply with the CPLR rules of evidence, and are very different from a normal Hearing or Trial.

Post-Hearing, if the Guardianship Judge deems the AIP to be an “Incapacitated Person” in need of a Guardian, one will be appointed. Thereafter, the Court will issue a “Findings of Fact, Conclusions of Law, and Judgment” which outlines the Hearing, the powers granted to the Guardian, and is then reduced to a written “Commission” that grants the newly appointed Guardian the authority to act, and specifies the scope of their powers. Once this process is complete, the real work of providing short and long term care of the IP begins, an undertaking where the Guardian is held to a strict fiduciary duty of care, and must periodically report/account to the Court regarding the care and both physical and financial health of their newly appointed “ward,” the IP.



*Gary E. Bashian is a partner in the law firm of Bashian & Farber, LLP with offices in White Plains, New York and Greenwich, Connecticut. Mr. Bashian is a past President of the Westchester County Bar Association, he is presently on the Executive Committee of the New York State Bar Association’s Trust and Estates Law Section, is a past Chair of the Westchester County Bar Association’s Trusts & Estates Section, past Chair of the Westchester County Bar Association’s Tax Section, and a member of the New York State Bar association’s Commercial and Federal Litigation Section.

Mr. Bashian gratefully acknowledges the contributions of Andrew Frisenda, an associate at Bashian & Farber, LLP for his assistance in the composition of this article.

[1] MHL 81.01

[2] MHL 81.02 (a)

[3] MHL 81.02 (b)

[4] MHL 81.07

[5] MHL 81.19. Note: MHL 81.19 also carves out standing rights for Corporations as well.

[6] The statute was recently amended to specifically allow an attorney to be a petitioning party.

[7] Before a person is adjudged to be an incapacitated Person, or an “IP,” they are referred to as a person Alleged to be Incapacitated, or “AIP.”

[8] MHL 80.07[b][1]

[9] Discussions between the Court Evaluator, Mental Hygiene Legal Services, Petitioner, and/or Cross-Petitioner will often result in a compromise. However, if no compromise can be reached, the Court will usually appoint a non-affiliated person as Guardian (see infra).

[10] Note: CPLR Discovery is not allowed in Article 81 Proceedings.

[11] Clearly this Hearing involves more than this brief overview, but for purposes of this brief article the intricacies of the Guardianship Hearing will not be addressed in detail.


Constructive Trusts and the “Elastic” Power of Equity

Law without principle is not law; law without justice is of limited value. Since adherence to principles of “law” does not invariably produce justice, equity is necessary.

  • Aristotle, Nicomachean Ethics

By Gary E. Bashian*

Perhaps because of their equitable, ancient, and amorphous nature, Constructive Trusts are often misunderstood by both advocates and, on occasion, the judiciary itself. Nevertheless, though rooted in age old equitable principles, Constructive Trusts have many applications; are not to be underestimated or overlooked; and can prove invaluable tools for Trusts and Estates litigators when and where they are properly used.

Preliminarily, it must be noted that the very purpose of a Constructive Trust as a remedy is often misconstrued. Constructive Trusts may be able to do many things, but the doctrine is limited insofar as it is not an “intent enforcing” mechanism, but rather a “fraud rectifying” device[i].  Advocates sometimes overlook this important distinction and seek the imposition of a Constructive Trust to enforce the stated, or presumed, intentions of an individual or entity, only to be met with dismissal either pre-answer or upon Summary Judgment as it is simply not within the power of a Constructive Trust to force a Defendant’s compliance with an unfulfilled promise.

Indeed, it is sometimes helpful to think of Constructive Trusts as a Cause of Action sounding in Fraud, but one that is subject to equitable review because some essential element necessary to sustain a Cause of Action for Fraud is not present.  As Constructive Trusts are often used as Fraud rectifying devices, it should come as no surprise that the applicable Statute of Limitations is six years, with a discovery rule based on the wrongful/proper “taking” analysis used in a conversion action[ii]. A similar, but slightly different way of thinking about Constructive Trusts as a Fraud rectifying device, is to consider it as an equitable tool for preventing Unjust Enrichment[iii].

Generally, Constructive Trusts fall into one of two types.

  1. The first common situation where the imposition of a Constructive Trust is appropriate is where one party has an equitable interest in an asset, but does not have legal title. Upon the party’s attempt to enforce their equitable interests, the legal title holder refuses to acknowledge that the non-title holder has any rights. A good example of this situation is where one party invests monies in a real property, the deed is in another party’s name, and legal owner of the real property thereafter denies the other party access, use, and/or rights to the real property[iv].
  1. The second common type of Constructive Trust is where title of an asset is transferred from one party to another based on the promise that it will be returned[v], or turned over to a rightful beneficiary, at a later time. Thereafter, when the party who no longer has, or can claim, legal title to the asset demands its return, the legal title holder refuses, and retains the asset in their sole ownership.

In order to establish these two common types of Constructive Trusts, a Plaintiff must plead, and subsequently prove, that:

  1. A confidential and/or fiduciary relationship existed between the parties at issue;
  2. Defendant made either an express or implied promise;
  3. A transfer was effected by the Defendant’s Promise; and
  4. The Defendant was unjustly enriched by said transfer.

However, a Plaintiff is not strictly bound by these elements, nor are Constructive Trusts restricted to the two most common examples described above. Equity, after all, has evolved throughout the history of Jurisprudence to ensure justice when and where the rigid formalism of the law cannot. Indeed, given the nature of an equitable action and the fact that a Constructive Trust is primarily a device to prevent Unjust Enrichment, the Courts have allowed flexibility in the pleading standards of a Constructive Trust, i.e.: a Plaintiff need not necessarily prove each element, nor must the facts rigidly conform to the above listed elements. As the Court of Appeals has made clear that when applying Constructive Trusts: “[t]he equity of the transaction must shape the measure of relief”[vi], thus allowing the doctrine of Constructive Trusts to remedy a myriad of wrongs in many situations where the power of equity is appropriately used.

Nevertheless, just because the Court has the equitable power to apply Constructive Trusts in a host of situations, does not mean that they have not had issues determining the limitations of the doctrine, or the standards required to plead and prove why a Constructive Trust should be imposed.

In Bower v Bower[vii], the Monroe County Supreme Court offered a thoughtful and detailed discussion about the “conundrum” the Court faces when asked to impose a Constructive Trust outside the more familiar and commonplace fact patterns. Recognizing the “elasticity” of equity, and being guided by the broad powers outlined by the Court of appeals in Simonds v Simonds[viii], the Court characterized Constructive Trusts as creatures of “[u]nfettered equity” which “converts the doctrine of a constructive trust into a subjective judicial judgment about the fundamental ‘fairness’ of a transaction.”

Ultimately, the Supreme Court’s analysis is that Constructive Trusts are a loose, equitable framework within which the Court identifies wrongdoing, determines damages in terms of the degree to which a Defendant was unjustly enriched, and orders restitution to the Plaintiff so as to prevent the Defendant from receiving a benefit from their wrongdoing.

Though it was not without hesitation that the Court defined Constructive Trusts in this manner – nor without concern or consideration as to how the Court should address the burden of proof; standards of proof; or even the absence of one or more of the accepted elements of the cause of action given the ill-defined boundaries of the doctrine – but its analysis about the nature of the Constructive Trust Doctrine, and the power which it affords the Court to ensure that substantial justice is achieved, could not be more incisive or apt.

As a legal doctrine, Constructive Trusts can offer an effective means to protect a client’s equitable rights. The broad and powerful nature of this form of relief cannot be discounted, and should always be considered where and when, in the presence of unjust enrichment, a more commonplace or familiar remedy simply cannot right the wrong that has been done.


*Gary E. Bashian is a partner in the law firm of Bashian & Farber, LLP with offices in White Plains, New York and Greenwich, Connecticut. Mr. Bashian is a past President of the Westchester County Bar Association, he is presently on the Executive Committee of the New York State Bar Association’s Trust and Estates Law Section, is a past Chair of the Westchester County Bar Association’s Trusts & Estates Section, past Chair of the Westchester County Bar Association’s Tax Section, and a member of the New York State Bar association’s Commercial and Federal Litigation Section.


Mr. Bashian gratefully acknowledges the contributions of Andrew Frisenda, a Sr. Associate of Bashian & Farber, LLP, for his assistance in the composition of this article.

[i] Bankers Security Life Insurance Society v Shakerdge, 49 Ny2d 939 [1980]

[ii] Sitkowski v Petzing, 175 AD2d 801 [2nd Dept 1991]

[iii] Sharp v Kosmalski, 40 N.Y.2d 119 [1976]

[iv] see generally Washington v Defense, 149 AD2d 697 [App Div 2nd Dept 1989]

[v] see generally Farano v Stephanelli, 7 AD2d 420 [App Div 1st Dept 1959]

[vi] Simonds v Simonds, 45 NY2d 233 [1978]

[vii] Bower v Bower, 42 Misc.3d 1231(A) [Monroe Sup Ct 2014]

[viii] ibid

Bashian & Farber Hosts a Webinar on Successfully Contesting a Will

On October 14, 2015 the Law offices of Bashian & Farber, LLP were proud to host a live, 90 minute “webinar” presented by the New York State Bar Association entitled “Winning a Will Contest Using Medical Records to Support Lack of Capacity.”

Partners Gary E. Bashian and Irving O. Farber lectured in detail about the nature of Testamentary Capacity under New York law, the use of medical records to establish a Testator’s lack of capacity, and Continue reading

Senior Law Day

On the afternoon of October 20, 2015, Andrew Frisenda, Esq. and Jordan Conger, Esq. of Bashian & Farber, LLP were pleased to attend Westchester County’s Annual Senior Law Day, and to provide pro bono legal advice to those who were in attendance.

Attorneys, Andrew Frisenda (left) and Jordan Conger (right)
Attorneys, Andrew Frisenda (left) and Jordan Conger (right)

As part of Bashian & Farber’s ongoing pledge to ensure that the greater Westchester County community, and senior citizens in particular, have open access to the highest level legal services, Andrew and Jordan met one-on-one with over a dozen local seniors to answer their questions, offer objective legal analysis, and provide guidance about the nature and necessity of Estate Planning.

The event, which took place at the Westchester County Center in White Plains, was hosted by Westchester County’s Department of Senior Programs and Services and was designed to provide information and support to all senior citizens in Westchester County.  Bashian & Farber, LLP is pleased to have participated in this event and is eager to offer Estate Planning Services to the senior community at large regarding all of its Estate Planning needs.

Top Five Areas of Concern about the New Statutory Short Form Power of Attorney

By: Gary E. Bashian, Co-Author


Prior to September 1, 2009, New York’s power of attorney form was simple to fill out and could be bought in local stationery stores without the need to go to an attorney. However, tabloid-worthy horror stories of agents misusing their power to steal from the aged and infirm led the legislature to react—and some might say overreact. A sweeping new financial-powers law took effect in New York on September 1, 2009, and it has created some unintended traps for residents.

Continue reading

Summary Judgment and Contested Accountings, not just for Petitioner anymore; Fiduciaries Beware

By: Gary E. Bashian, Esq.*


Both veteran and novice litigators alike know the potential and the pitfalls that come with moving for Summary Judgment pursuant to CLPR § 3212.

Arguably once hostile to its use, the New York Surrogate’s Courts appear to be increasingly receptive to Summary Judgment Motions in order to expedite litigation, eschew issues that can be addressed before trial, and frame issues for settlement negotiations.

An area of Estate litigation not regularly considered for Summary Judgment are Accounting proceedings, more specifically, an Objectant’s motion for Summary Judgment in an Accounting proceeding against an Accounting.

Continue reading

Supreme Court Westchester Sends Original Last Will & Testament of Article 81 Incapacitated Person to Surrogate’s Court of Westchester: Clash of Jurisdictions in our own Backyard

By: Gary E. Bashian, Esq.*


As is often the case with elderly clients, matters that are initiated in the Supreme Court can, for a variety of reasons, find themselves later embroiled in questions of jurisdiction.

Though each proceeding may involve the same characters and nucleus of facts, there are nevertheless jurisdictional concerns that can arise which must be addressed so as to ensure that the proper Court is exercising its authority on an issue over which they have jurisdiction. With the ever expanding population of senior citizens in the nation, this problem will only grow over the next few years because of issues relating to seniors that never existed years ago.

Continue reading

A Recent Primer on Undue Influence: Estate of Julia Elizabeth Taschereau

By: Gary E. Bashian, Esq.*


On October 29, 2010 Surrogate Webber, of the N.Y. County Surrogate’s Court, rendered a decision regarding the Will of Julia Elizabeth Taschereau (NYLJ 1202474902148 at *1) which offers a detailed illustration of how to meet the evidentiary burden of proving Undue Influence in a Will contest.

Objecting to a Will on the grounds of Undue Influence presents evidentiary challenges. The close relationships that often surround an allegation of Undue Influence make it difficult to prove by direct evidence. The burden is on the Objectant to prove motive, opportunity, and the actual exercise of Undue Influence.

Continue reading

Post Appeal Motion to Renew in the Supreme Court

By: Gary E. Bashian, Esq.*


It ain’t over till it’s over

Yogi Berra


Consider the following scenario:

  1. A Defendant’s Pre-Answer Motion to Dismiss is partially granted by a Court of original Jurisdiction, striking several of Plaintiff’s Causes of Action as pled;
  2. Both parties appeal to the Appellate Division, where the Lower Court’s Order is affirmed in its entirety;
  3. During the Discovery process, months, or maybe even years subsequent to the Order striking Plaintiff’s originally pled Causes of Action, new facts and evidence come to light during the Discovery process which clearly establish that Dismissal of one or more of Plaintiff’s originally pled Causes of Action was in error.

Question: What do you do?

Continue reading

Technical Corrections to the New Statutory Power of Attorney and Statutory Major Gifts Rider

By: Gary E. Bashian, Esq.


On September 12, 2010, the Technical Corrections Act, signed by Governor Patterson August 15, 2010, will take effect, modifying the recently changed Statutory Short Form Durable Power of Attorney and General Obligations Law in a number of important ways. All references to the statute herein are to the General Obligations Law

These changes affect several areas, including: (1) allowable agents under the statutory Power of Attorney, (2) terms of revocation, (3) changes to the Statutory Major Gifts Rider, 94) an agent’s powers regarding Trusts and to engage in alternative dispute resolution, (5) requirements for third parties to accept an agent’s power under the form, and (6) effective Powers of Attorney created in other states or jurisdictions.

Some of these changes are broad ad uniform; others are more specific and directed.

Continue reading