2006 New York Code - 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  (c)  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 (d) 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.