Section 7.61 - X. Effect Of The Appointment On An Incapacitated Person

• Jurisdiction: New York

X. EFFECT OF THE APPOINTMENT ON AN INCAPACITATED PERSON

Title in all property remains with the incapacitated person and is subject to the control of the guardian only to the extent provided in the order appointing the guardian.

The appointment of a guardian under Article 81 does not by itself revoke a durable or springing durable power of attorney, health care proxy or do-not-resuscitate order, or any living will, nor can a guardian be authorized under Article 81 to revoke such directive.¹¹⁶⁸ The court, in the course of appointing a guardian under Article 81, may revoke, amend or modify, pursuant to the statute, a durable or springing durable power of attorney, a reverse mortgage a health care proxy or a do-not-resuscitate order if the court finds that the advance delegation was made while the person was incapacitated or the fiduciary has failed to carry out his or her fiduciary obligation.¹¹⁶⁹

This limitation recognizes that New York’s public policy favors self-determination through the use of powers of attorney and other advance directives. In a guardianship proceeding, the wishes of an incapacitated person are given great weight. It is also intended to ensure that, in determining the appropriate relief for the individual’s needs, the court consider less restrictive alternatives to guardianship. In many cases, an existing power of attorney has been found to be a reliable appropriate alternative.¹¹⁷⁰ Finally, the statutory limitation on the guardian and the court reflects a determination that guardianship proceedings not be viewed as a weapon in the arsenal of warring siblings and others who wish to undo powers of attorney for selfish motives.

The court may annul a marriage.¹¹⁷¹ The court’s authority to revoke a last will and testament executed by the person alleged to be incapacitated is less clear.¹¹⁷²

This change in Article 81 brings it more in line with Article 17-A of the Surrogate’s Court Procedure Act (SCPA). Article 17-A governs the appointment of a guardian for a person with mental retardation or a developmental disability. Pursuant to § 1750-b of the SCPA, a guardian may make health care decisions, including end-of-life treatment decisions, provided that the court has made a determination that the individual lacked the capacity to make medical decisions.¹¹⁷³ Article 17-A of the SCPA also authorizes end-of-life decision making by family members for a person who has been diagnosed as having mental retardation or a developmental disability...