2023 New York Laws › MHY - Mental Hygiene › Title E - General Provisions › Article 81 - Proceedings for Appointment of a Guardian for Personal Needs or Property Management › 81.21 - Powers of Guardian; Property Management.

§ 81.21 Powers of guardian; property management.
(a)  Consistent  with  the functional limitations of the incapacitated
person, that person's understanding and appreciation of the harm that he
or she is likely to suffer as the result  of  the  inability  to  manage
property  and  financial  affairs,  and  that  person's personal wishes,
preferences, and desires with regard to managing the activities of daily
living, and the least restrictive form of intervention,  the  court  may
authorize the guardian to exercise those powers necessary and sufficient
to  manage  the  property  and  financial  affairs  of the incapacitated
person; to provide for the maintenance and support of the  incapacitated
person,  and  those  persons depending upon the incapacitated person; to
transfer a part of the incapacitated  person's  assets  to  or  for  the
benefit  of  another  person on the ground that the incapacitated person
would have made the transfer if he or she had the capacity to act.
Transfers made pursuant to this article may be in any  form  that  the
incapacitated  person could have employed if he or she had the requisite
capacity, except in the form of a will or codicil.
Those powers which may be granted include, but are not limited to, the
power to:
1. make gifts;
2. provide support for persons dependent upon the incapacitated person
for  support,  whether  or  not  the  incapacitated  person  is  legally
obligated to provide that support;
3.  convey  or release contingent and expectant interests in property,
including  marital  property  rights  and  any  right  of   survivorship
incidental to joint tenancy or tenancy by the entirety;
4.  exercise  or  release  powers  held by the incapacitated person as
trustee, personal representative, guardian for minor, guardian, or donee
of a power of appointment;
5. enter into contracts;
6. create revocable or irrevocable trusts of property  of  the  estate
which  may  extend  beyond  the  incapacity or life of the incapacitated
person;
7. exercise options of the incapacitated person to purchase securities
or other property;
8. exercise rights to elect options  and  change  beneficiaries  under
insurance  and  annuity policies and to surrender the policies for their
cash value;
9. exercise any right to an  elective  share  in  the  estate  of  the
incapacitated person's deceased spouse;
10.  renounce  or  disclaim  any  interest  by  testate  or  intestate
succession or by inter vivos transfer consistent with paragraph  (d)  of
section 2-1.11 of the estates, powers and trusts law;
11. authorize access to or release of confidential records;
12. apply for government and private benefits;
13. marshall assets;
14. pay the funeral expenses of the incapacitated person;
15.  pay  such  bills  as  may be reasonably necessary to maintain the
incapacitated person;
16. invest funds of the incapacitated person as permitted  by  section
11-2.3 of the estates, powers and trusts law;
17. lease the primary residence for up to three years;
18. retain an accountant;
19. pay bills after the death of the incapacitated person provided the
authority  existed  to  pay  such bills prior to death until a temporary
administrator or executor is appointed; and
20. defend  or  maintain  any  judicial  action  or  proceeding  to  a
conclusion until an executor or administrator is appointed.
The   guardian  may  also  be  granted  any  power  pursuant  to  this
subdivision granted to committees  and  conservators  and  guardians  by
other   statutes   subject   to   the   limitations,   conditions,   and
responsibilities of the exercise thereof unless  the  granting  of  such
power is inconsistent with the provisions of this article.
(b)  If the petitioner or the guardian seeks the authority to exercise
a power which involves the transfer  of  a  part  of  the  incapacitated
person's  assets  to or for the benefit of another person, including the
petitioner  or  guardian,  the  petition  shall  include  the  following
information:
1.  whether any prior proceeding has at any time been commenced by any
person  seeking  such  power  with  respect  to  the  property  of   the
incapacitated  person  and,  if  so, a description of the nature of such
application and the disposition made of such application;
2.  the  amount  and  nature  of  the  financial  obligations  of  the
incapacitated   person   including  funds  presently  and  prospectively
required to provide for  the  incapacitated  person's  own  maintenance,
support,  and well-being and to provide for other persons dependent upon
the incapacitated person for support, whether or not  the  incapacitated
person is legally obligated to provide that support; a copy of any court
order  or  written  agreement  setting  forth support obligations of the
incapacitated person shall be attached to the petition if  available  to
the petitioner or guardian;
3. the property of the incapacitated person that is the subject of the
present application;
4.  the proposed disposition of such property and the reasons why such
disposition should be made;
5. whether the incapacitated person has sufficient  capacity  to  make
the proposed disposition; if the incapacitated person has such capacity,
his or her written consent shall be attached to the petition;
6.  whether the incapacitated person has previously executed a will or
similar instrument and if so, the terms of the  most  recently  executed
will  together  with  a statement as to how the terms of the will became
known to the petitioner or guardian; for purposes of this  article,  the
term  "will"  shall  have the meaning specified in section 1-2.19 of the
estates, powers and trusts law and "similar instrument" shall include  a
revocable or irrevocable trust:
(i)  if  the  petitioner  or  guardian can, with reasonable diligence,
obtain a copy, a copy of the most  recently  executed  will  or  similar
instrument shall be attached to the petition; in such case, the petition
shall  contain  a statement as to how the copy was secured and the basis
for the petitioner or guardian's belief that such copy is a copy of  the
incapacitated   person's   most   recently   executed  will  or  similar
instrument.
(ii) if the petitioner or guardian is unable to obtain a copy  of  the
most  recently executed will or similar instrument, or if the petitioner
or guardian is unable to determine whether the incapacitated person  has
previously executed a will or similar instrument, what efforts were made
by the petitioner or guardian to ascertain such information.
(iii)  if  a  copy  of  the  most  recently  executed  will or similar
instrument is not otherwise available, the court may direct an  attorney
or  other  person who has the original will or similar instrument in his
or her possession to  turn  a  photocopy  over  to  the  court  for  its
examination,  in  camera.  A photocopy of the will or similar instrument
shall then be turned over by the court to the parties in such proceeding
unless the court finds that to do so  would  be  contrary  to  the  best
interests of the incapacitated person;
7. a description of any significant gifts or patterns of gifts made by
the incapacitated person;
8.   the   names,  post-office  addresses  and  relationships  of  the
presumptive distributees of the incapacitated person  as  that  term  is
defined  in  subdivision  forty-two  of section one hundred three of the
surrogate's court procedure act and of the beneficiaries under the  most
recent will or similar instrument executed by the incapacitated person.
(c)  Notice  of  a petition seeking relief under this section shall be
served upon:
(i) the persons entitled to notice in accordance with paragraph one of
subdivision (e) of section 81.07 of this article;
(ii)  if  known  to  the  petitioner  or  guardian,  the   presumptive
distributees  of  the  incapacitated  person  as that term is defined in
subdivision forty-two of section one hundred three  of  the  surrogate's
court procedure act unless the court dispenses with such notice; and
(iii) if known to the petitioner or guardian, any person designated in
the  most  recent will or similar instrument of the incapacitated person
as beneficiary whose rights or interests would be adversely affected  by
the  relief  requested  in  the petition unless the court dispenses with
such notice.
(d) In determining whether to approve the application, the court shall
consider:
1. whether the incapacitated person has sufficient  capacity  to  make
the  proposed  disposition himself or herself, and, if so, whether he or
she has consented to the proposed disposition;
2. whether the disability of the incapacitated person is likely to  be
of  sufficiently  short  duration  such  that  he or she should make the
determination with respect to the proposed disposition  when  no  longer
disabled;
3.  whether  the  needs  of  the  incapacitated  person and his or her
dependents or other persons depending upon the incapacitated person  for
support can be met from the remainder of the assets of the incapacitated
person after the transfer is made;
4. whether the donees or beneficiaries of the proposed disposition are
the  natural  objects  of  the  bounty  of  the incapacitated person and
whether  the  proposed  disposition  is  consistent   with   any   known
testamentary plan or pattern of gifts he or she has made;
5.  whether the proposed disposition will produce estate, gift, income
or other tax savings which will significantly benefit the  incapacitated
person  or  his  or  her  dependents  or  other  persons  for  whom  the
incapacitated person would be concerned; and
6. such other factors as the court deems relevant.
(e) The court may grant the application  if  satisfied  by  clear  and
convincing  evidence  of  the following and shall make a record of these
findings:
1. the incapacitated person lacks the  requisite  mental  capacity  to
perform  the  act  or acts for which approval has been sought and is not
likely to regain such capacity within a reasonable period of time or, if
the incapacitated person has the requisite  capacity,  that  he  or  she
consents to the proposed disposition;
2.   a  competent,  reasonable  individual  in  the  position  of  the
incapacitated person would be likely to perform the act  or  acts  under
the same circumstances; and
3.   the   incapacitated   person  has  not  manifested  an  intention
inconsistent with the performance of the act or acts for which  approval
has  been  sought  at some earlier time when he or she had the requisite
capacity or, if such intention was  manifested,  the  particular  person

would  be  likely to have changed such intention under the circumstances
existing at the time of the filing of the petition.
(f)  Nothing  in  this  article  imposes  any  duty on the guardian to
commence a special  proceeding  pursuant  to  this  article  seeking  to
transfer  a part of the assets of the incapacitated person to or for the
benefit of another person and  the  guardian  shall  not  be  liable  or
accountable  to  any  person  for  having  failed  to commence a special
proceeding pursuant to this article seeking to transfer a  part  of  the
assets  of  the  incapacitated  person  to or for the benefit of another
person.