Alternatives to Article 81 Mental Hygiene Law Proceedings

Alternatives to Article 81 Mental Hygiene Law Proceedings


                Mental Hygiene Law Article 81 was established to provide a guardianship system that could be tailored to the individual needs of an incapacitated person and at the same time afford that individual the greatest amount of independence, self-determination and participation in all the decisions affecting such person’s life. Most significantly, a guardianship proceeding under Article 81 focuses on the functional ability of the person. It emphasizes how the person carries out daily activities in their everyday life, rather than focusing on the underlying cause of the behavior that exists in SCPA Article 17A proceedings.
While in certain instances utilization of Article 81 proceedings are necessary in order to provide for the personal and financial needs of incapacitated persons, many seek such relief as a last resort due to the costs and time consumed in using that procedure.
            Alternate means that should be considered, which generally involve less time and expense, include tailored-made powers of attorney, Article 17-A proceedings, limited guardianship under SCPA 1756, modified orders under SCPA 1755, irrevocable and special needs trusts (see EPTL 7-1.12; Radigan & Hillman, Trusts & Estates Law Expert Analysis, N.Y.L.J., Jan. 6, 2010, at 3, col. 1). 
These substitutes can be utilized to tailor relief needed for individuals without the deprivation and costs of an Article 81 proceeding. It may be wise for the legislature and even practitioners to draft a special power of attorney to reach the same goals as Article 81, similar to a healthcare proxy.