lV. Standard For Appointment of Guardian

• Jurisdiction: New York

IV. Standard For Appointment of Guardian

An Article 81 proceeding may be commenced in supreme court⁹ and in county courts outside of New York City.¹⁰ "Nothing beyond mere physical presence" in New York is necessary to confer jurisdiction.¹¹ In certain circumstances, the proceeding may be commenced in surrogate's court.¹²

Although the language of Article 81 does not address the case of a former resident who is now living in another jurisdiction, it still may be possible for the court to obtain jurisdiction over that individual for purposes of commencing an Article 81 proceeding. Several cases have considered the matter.¹³

In re Winter is perhaps the most useful to review because it offers a detailed examination of the factual basis for the court's decision. The case involved siblings feuding over their mother's care.¹⁴ In January 2009, petitioner daughter commenced an Article 81 guardianship for the 92-year-old mother. At the time the proceeding was begun, the mother had been living with her son in Connecticut for about a month. The daughter claimed that the son had isolated his mother, was keeping her against her will and was using her property for his benefit.

The mother had been a resident of Albany County for 22 years. In December 2008, she was hospitalized in Albany Medical Center Hospital for seven days, where she received a diagnosis of, and treatment for, dementia. Shortly after her discharge the woman went to stay with her son in Connecticut. There she was served with the Article 81 papers. The order to show cause ordered personal service on the mother in accordance with N.Y. Civil Practice Law & Rules 308 (CPLR).

Appearing by her attorney, the respondent claimed that the court lacked jurisdiction over her because she did not reside in New York, she was not served in New York, and service did not conform to the specifications of the order to show cause.

The court opined that its decision would turn on whether clear and convincing evidence established that the mother intended to change her domicile so as to deprive the court of jurisdiction.

Noting that a person can have more than one residence at a time, the court quoted In re Webber's Will:

The law of domicile is definite. Every person must have a domicile and can have only one at any one time. A person acquires a domicile of origin at birth. Such domicile of origin is that of his or her parents at the time of birth and it continues until there has been an effective change. To acquire a domicile of choice there must be an intent to abandon the prior domicile, whether of origin or choice, and an intent to acquire a new one. Actual residence in a particular locality and intent to remain there must concur.¹⁵

The court then turned to an examination of the mother's actions viewed through the allegations in the proceeding.

The daughter alleged that her mother's move was temporary in order to provide some respite to the daughter caregiver and to allow the mother to receive some outpatient evaluations. The daughter pointed to two statements made by her mother. The first was her mother's letter to her landlord terminating her apartment lease at the end of January 2009. In it she stated that she intended to move to an assisted living facility in the area. The second was the mother's statements about intending to return home, which she made to her other son when he visited her in Connecticut. The daughter also relied on information about previously scheduled physician's appointments in New York in January and February 2009, her mother's storage of many personal items in New York, her execution of advanced directives in New York, her attendance at church in New York and her maintenance of a New York State driver's license.

The son with whom the mother was living alleged that the move was permanent and pointed to a change of address card allegedly completed by the mother and a check as evidencing his mother's new Connecticut checking account. The mother submitted an affidavit detailing the personal items that she had taken to her son's home.

The daughter alleged that her mother lacked the capacity to form an intent to change her domicile; the son and mother claimed the contrary.

The court concluded that the mother had failed to establish an intent to change domicile. It relied on her statements to her other son about intending to return home, her correspondence about her move to the assisted living facility and her failure to bring up the subject of the change of address card. Consequently, the court held that service on the mother in Connecticut was sufficient.

The Winter case presents the potential for children, judges, and jurisdictions competing over guardianship of an individual who has ties to several jurisdictions, a problem that is not uncommon when an individual has a second home, children living in different parts of the country, or is receiving care in another state, or was relocated by a family member. In 2013, New York adopted Article 83 of the Mental Hygiene Law,¹⁶ based on the Uniform Guardianship and Protective Proceedings Jurisdiction Act, a model act to address the jurisdictional conflicts that can emerge in such situations.¹⁷

Article 83, known as the Uniform Guardianship and Protective Proceedings Jurisdiction Act, creates a detailed framework for, and provides guidance to, the court in resolving these issues. Its key provisions include (1) the basis for finding jurisdiction in New York;¹⁸ (2) the basis for declining jurisdiction in New York;¹⁹ and (3) resolving jurisdictional disputes when competing petitions are pending in multiple states.²⁰ The statute also provides answers to other thorny questions, including acceptable methods for obtaining testimony from a witness located in another state,²¹ transfers of guardianship between states,²² registration of out-of-state guardianship judgments,²³ and the relationship of § 81.18 (foreign guardians) and the provisions of Article 81.²⁴

The enactment of Article 83, which became effective April 21, 2014, offers the promise of more easily resolved disputes, a reduction in litigation, and a way to better serve those in need of protection.²⁵

The court's power to appoint a guardian requires clear and convincing²⁶ evidence that the appointment is necessary so that the person can meet his or her personal care or property management needs, and that the person either agrees to the appointment or is incapacitated as defined in the statute.²⁷

It has been established by a certain line of cases that the appointment of an Article 81 guardian is available for minors as well as adults.²⁸ The court in Marmol (Pineda) examined the history of the rules regarding the court's supervision of an infant's settlement and determined that the provisions of Article 81 are compatible with those rules. The court in In re Le reached its decision without any discussion of the appropriateness of using Article 81 for a child.

The court in In re Cruz,²⁹ considering a petition by a grandmother for guardianship over a two- year-old child with severe mental impairments due to medical malpractice during a forceps delivery, echoed the views expressed in Marmol. The court, determining that Article 81 is applicable to mentally disabled minors, found the statutory language sufficient to warrant such a remedy. The court found nothing in the statute that limited its applicability to minors and cited to provisions suggesting its applicability: § 81.19(a)(1), which includes in the class of eligible guardians...