Muldoon, Horgan & Loughman
 

The New Adult's Guardian Law

BY: EDWARD D. LOUGHMAN, III*

Effective April 1, 19931 the statutes providing for committees of incompetents2 and conservators of conservatees3 are repealed. Although all existing orders, determinations or decisions remain in effect,4 all new and pending proceedings are governed by "Proceedings for Appointment of a Guardian for Personal Needs or Property Management".5 The scope is broader and more complete and covers circumstances not covered under prior law. The application is more flexible and should be geared toward the particular needs of the individual. Despite these developments and the new terminology, the procedures are not fundamentally different.

Rather than a comprehensive review of the details of the new provisions,6 this Article provides an overview of the new law, comparing it to the old law and highlights the new provisions designed to address the inadequacies and gray areas of the old statutes

PURPOSE

Finding the existing systems inadequate: that an adjudication of incompetency, with loss of civil rights was too severe and that conservatorships were often insufficient or too restrictive, the new statute was enacted7 providing a broad spectrum of flexible applications including control over the person of the one incapacitated. Rather than require a finding that someone "is incompetent to manage himself or his affairs"8 or that he or she "has suffered substantial impairment of his ability to care for his property",9 the new statute requires a finding of need for a guardian and either consent or a finding of incapacity as defined in the statute.10 Rather than adjudicating someone incompetent or unable to manage their affairs and effectively taking control away from the incompetent or conservatee, the order appointing a guardian "shall be designed to accomplish the least restrictive form of intervention" and the powers of the guardian limited to only those "necessary to assist the incapacitated person in providing for personal needs and/or property management."11 Short of appointing a guardian, the Court may approve a protective arrangement or authorize or ratify a single transaction or series of transactions.12

PROCEDURE

Like the prior procedures, a proceeding for appointment of a guardian is a special proceeding governed generally by Article 4 of the CPLR,13 is brought in Supreme or County Court,14 by petition15 and order to show cause,16 and, requires a hearing17 at which the petitioner has the burden of proof by clear and convincing evidence.18 If demanded, a jury trial is required.19

Similar to prior law, the petition may be made by the allegedly incapacitated person (AIP), a presumptive distributee, the trustee of trust for the benefit of or set up by the AIP, the person with whom the AIP resides, "a person otherwise concerned with the welfare of the person alleged to be incapacitated" or the facility at which the AIP is a resident.20 Notice requirements are more specific, requiring a hearing within twenty-eight days of filing,21 specific language designed to alert the AIP to the nature and consequences of the proceeding22 and personal service on the AIP at least fourteen days before the hearing and service by personal service or mail on the Court Evaluator named in the order to Show Cause, the spouse, parents, adult children, adult siblings, attorneys in fact, the AIP's attorney and close friends or organizations.23

The standard that the Court must apply is

1. that the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person; and

2. that the person agrees to the appointment, or that the person is incapacitated as defined in subdivision (b) of this section.24

A finding of incapacity requires "a determination that a person is likely to suffer harm because:

1. the person is unable to provide for personal needs and/or property management; and

2. the person cannot adequately understand and appreciate the nature and consequences of such inability.25

Presumably a person unable to manage and who appreciates his or her inability would consent to a guardian. If the person did not consent however, mental illness alone26 or a deliberate refusal of needed assistance27 would still not be enough to sustain an involuntary petition.

Although proceedings under the prior law required medical proof, the investigation now requires a more thorough and functional evaluation. Not only must the petition allege "the alleged incapacitated person's functional level including that person's ability to manage the activities of daily living, behavior and the understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living",28 but the Court must set forth its finding in that regard.29 Not only are these determinations necessary to decide if a guardian is needed, but to tailor the "least restrictive form of intervention" as to the AIP's property and/or personal needs.30 As a result, the proceeding is likely to be more complicated and time consuming than was the routine conservatorship proceeding.

In order to make these comprehensive determinations, the Court will have the input of the Court Evaluator whose role is clearly to assist the Court. The Court Evaluator need not be an attorney but could be a physician, accountant, social worker or other professional appropriate to the needs of the particular AIR31 Unlike the Guardian ad litem called for under prior law,32 the Court Evaluator's role is clearly to evaluate and advise the Court. Thus the inherent conflict under the old law when the guardian was torn between his or her role as advocate for the proposed conservatee and role as adviser to the Court,33 is obviated by the requirement that counsel be appointed to act as the AIP's advocate if the situation warrants it.34

The scope of the hearing is likely to be broader: not only will there be the testimony of the Court Evaluator but perhaps even those upon whom the Evaluator relied for his report.35 For good cause shown, the rules of evidence may be waived36 obviating the problems under old law when the respondent's assertion of the physician/patient privilege could hinder, if not completely thwart, a complete review of the respondent's condition.37 Unlike prior practice in which the proposed conservatees presence was often waived,38 the hearing must be conducted in the presence of the AIP even if that requires conducting the hearing at the AIP's residence, unless strict requirements are met.39 Unlike prior law, the hearings are presumptively open to the public.40

The Guardian can be an individual over 18 (or a parent under 18) and certain corporations.41 If the AIP had nominated someone, either pursuant to Mental Hygiene Law §81.17 or orally or by conduct at the hearing, that person must be appointed "unless the court determines the nominee is unfit or the allegedly incompetent person indicates that he or she no longer wishes the nominee to be appointed".42 In determining who should be appointed guardian, the Court must consider anyone holding a present or springing power of attorney, a health care proxy or designated a surrogate to issue "do not resuscitate orders"; the proposed guardian's social relationship with the AIP; whether any conflicts of interest exist between the proposed guardian and the AIP; and the particular needs of the AIP compared to the qualification of the guardian in those areas.43

Like prior law, injunctions44 and notices of pendency45 are available in the proper case. New to this statute is the provision for the appointment of a temporary guardian when warranted.46

COMPENSATION

The Court may award reasonable compensation to the attorney for the petitioner if the petition is granted or if the Court deems it appropriate.47 Unlike prior law,48 the Guardian's compensation is suggested to be similar to trustee's commissions but with consideration given to the additional responsibilities if the guardian exercises control of personal needs.49 The Court may allow reasonable compensation to counsel for the AIP50 and a "reasonable allowance" to the Court Evaluator.51 It is to be paid from the estate of the AIP if the petition is granted but the petitioner can be liable if the petition is denied.52 There are also provisions to compensate temporary guardians,53 special guardians,54 the examiner of the annual report55 and the referee on final or intermediate accountings56 out of the AIP's estate.

AFTER APPOINTMENT

Proof of appointment remains the commission57 which should issue within five days of filing a bond58 and designation of the clerk as agent for service of process.59 Because of the flexibility of the statute, however, the commission itself will likely be inadequate for the guardian to open a bank account or sign a contract in the name of the AIP, because the AIP retains the power to do all acts not given to the guardian60 and, though the Court may authorize the guardian to exercise those powers necessary and sufficient to manage the property and financial affairs of the AIP,61 the guardian's powers should be "limited to those which the Court has found necessary to assist the person in providing for the personal needs and/or property management".62 At least initially, the commission is likely to be a standard form and will not state whether the guardian has the power to open an account or sign a contract. Although a form commission specifying certain powers may soon be utilized, until then, certified copies of the order are a likely requirement of every bank or party with whom the guardian deals.

New to the statute is express authority for the guardian to commence a proceeding to discover and recoup property of guardian.63

Unlike the prior role of the conservator, the guardian bo given extensive responsibilities for the personal needs of the AIP.64

Although many of these responsibilities, such as determining who should provide personal care or applying for benefits, were often done by a conservator, there remained a tremendous gray area about the conservator's authority to do so-especially if the conservatee or a relative objected.65 Under the new statute, the guardian may be given the power to determine whether the AIP should travel, have a drivers license, release confidential records or further their education.66 Although the guardian may be given the power to consent or refuse routine or major medical or dental treatment,67 it does not convey the right to refuse or terminate life sustaining treatment,68 nor may the guardian revoke a power of attorney, health care proxy or surrogate to make a "do not resuscitate order".69 Although the Court may modify or revoke powers of attorney, contracts, proxies or DNR authorization if it finds that the AIP was incapacitated when made70 it may not refuse or terminate life sustaining treatment unless appropriate under other law.71

Although the guardian may choose the AIP's place of abode consistent with the Court's findings under section 81.15, the guardian may not confine the AIP to a hospital or nursing home without consent72 nor consent to involuntary commitment of the AIP under Article 9 (mental illness), 15 (mental retardation), or 21 (alcoholism) of the Mental Hygiene Law.73

The new law codifies case law regarding the AIP's ability to make inter vivos gifts and continues prior law regarding the ability to make a will. Expanding upon cases such as Matter of Florence,14 that allowed the exercise of substituted judgment to make gifts of a conservator's property to continue an estate plan for tax purposes, the new statute sets forth specific criteria to sanction gifts of the AIP's property.75 Following prior law regarding conservators,76 a finding of incapacity under Article 81 is "not conclusive evidence that the person lack capacity ... to dispose of property by will".77 The Court may, however, determine that a disposition taking effect upon death (e.g. a will) was made while incapacitated and so modify, amend or revoke it.78

New to this statute is the requirement of an initial report within ninety days of the issuance of the commission79. The report must contain proof of completion of the guardian education requirements, a verified inventory and plan for guardians given powers regarding property management, a report of personal visits and initial steps toward providing for the personal needs of the AIP and reasons for change80. The annual report is due in May rather than January81 and requires more details as to the personal needs of the AIP. The accounts are to be reviewed by examiners appointed by the chief justice of each appellate division (or his or her designee)82 much in the same way prior law provided for referees.83

CONCLUSION

Although the intent of the new statute is noble-to cover all the hitherto gray areas from minimal assistance through the traditional incompetency proceeding-while simultaneously ensuring the minimum intrusion upon the person in need of assistance, it is unclear that all these goals can be achieved. Although it is likely that what had been the routine uncontested conservatorship will soon become the standard guardianship proceeding with standard powers, there is likely to be a difficult shakedown period until the courts are comfortable with what is routine. Especially in this era of overburdened courts, it is far from certain that the detailed, person-specific review of each individual case can be had within the time frames required by the statute.

For example the hearing must be held within twenty-eight days of filing the petition and the AIP must be served at least fourteen days before the hearing. The AIP cannot be served until the order to show cause is signed and the order to show cause cannot be signed until the Court Evaluator is appointed and the papers reviewed and approved. Can all this, (especially with the review by the ex parte motion office in those counties that have one) of new forms prepared by counsel unfamiliar with a new statute, be done within fourteen days? Moreover can the Court reasonably be expected to render a decision within forty-five days of filing as required?84

Another problem will be the expense of the required proof, both expert and lay, and the additional complexity the expert testimony will engender. Might a prima facie case require not only medical/psychological testimony but the testimony of a social worker, physical therapist and perhaps relatives or other people with whom the AIP resides or has frequent contact?

The new statute provides the framework to tailor each particular case to the particular needs of each individual. Time will tell whether the system can handle the burden of fine-tuning each case.

© Westchester County Bar Association 1993 reprinted with permission


*Member, Muldoon, Horgan & Loughman, New Rochelle, New York.

1L. 1992, c. 698, §3. Although the law is often referred to as the Adult Guardian law this is not very descriptive as all guardians are adults. Note that the provisions of Article 17-A of the S.C.P.A., §§ 1750 et seq. regarding Guardians of Mentally Retarded and Developmentally Disabled Persons remain in effect.

2Mental Hygiene L. Article 78, repealed L. 1992, c. 698, §2.

3Mental Hygiene L. Article 77, repealed L. 1992, c. 698, §1.

4L. 1992, c. 698, §4.

5Mental Hygiene L. Article 81. Although, as originally enacted, it was unclear whether pending proceedings were covered under the old or new law, under recent amendments passed April 12, 1993 but effective April 1, 1993, the Court must make the findings required by §81.15 and the adjudication required by §81.16. Furthermore, unless the Court deems it impractible, Article 81 should be followed in its entirety. L. 1993, c. 32. §17; Matter of lngrid Schrader, N.Y.L.J., June 9, 1993, p. 29, col. 4 (Sur. Ct. Nassau) (strict compliance impractical). As the new law can usurp more rights than the old law it would appear that due process would require additional notice before greater control than asserted in the original petition could be granted. Conservators and committees appointed under prior law must follow the reporting requirements of sections 81.31 and 81.32 as of May 1, 1994. Id.

6E.g. Beane, "Outside Counsel: The New Adult Guardian Mental Hygiene Law Article 81", N.Y.L.J., April 20, 1993, p. 1, col. 1; Koppell & Munnelly, "Outside Counsel: The New Guardian Statute, Article 81 of the Mental Hygiene Law", N.Y.L.J., Oct. 26, 1992, p. 1 col. 1. reprinted in 65 N.Y.S.B.J. 16 (1993); Leinheardt, "The New Mental Hygiene Law: Article 81 Proceedings for Appointment of a Guardian for Personal Needs or Property Management" 2 5:3 Trusts & Estate L. Section Newsletter (NYSBA) 7 (1992).

7Mental Hygiene L. §81.01.

8Former Mental Hygiene L. §78.01.

9Former Mental Hygiene L. §77.01.

10Mental Hygiene L. §81.02 (a).

11Mental Hygiene L. §81.16(c)(2). The person for whom the guardian is appointed is also referred to as "allegedly incapacitated person" Mental Hygiene L. §81.06 (a)(3 & 4); "person alleged to be incapacitated" §§ 81.05(a), 81.06(a), & 81.09(c) and "person with incapacities" §81.01. For consistency's sake I will adopt the abbreviation AIP. Leinheardt, "The New Mental Hygiene Law", supra note 6, at 7.

12Mental Hygiene L. §81.16(b).

13CPLR §101.

l4Mental Hygiene L. §81.04 (a). If the allegedly incapacitated person is interested in a matter involving Surrogate's Court, the Surrogate may entertain the petition. Mental Hygiene L. §81.04(b).

15Mental Hygiene Law §81.06. The contents of the petition are governed by section 81.08.

16Mental Hygiene L. §81.07.

17Mental Hygiene L. §81.11.

18Mental Hygiene L. §81.12.

19Mental Hygiene L. §81.11 (f).

20Mental Hygiene L. §81.06.

21Mental Hygiene L. §81.07 (a)(l).

22Mental Hygiene L. §81.07(c).

23Mental Hygiene L. §81.07(d). If the petitioner knows the AIP receives Public Assistance or protective services under article 9-B of the Social Services Law, the local department of social services must be given notice as well. Mental Hygiene L. §81.07(d)(l)(vii) as amended L. 1993, Ch. 32 §1.

24Mental Hygiene L. §81.02(a).

25Mental Hygiene L. §81.02(b).

26Matter of Grinker, 77 N.Y. 2d 703, 504 N.Y.S. 2d 448 (1991).

27See Rivers v. Katz, 67 N.Y. 2d 485, 504 N.Y.S. 2d 74 reargument den., 68 N.Y. 2d 808, 506 N.Y.S. 2d 1039 (1986).

28Mental Hygiene L. §81.08(a)(3). Although the statute does not specifically require medical or other expert evidence as part of the petition, neither did the prior statute and such proof was generally required. Note that in order to be in admissable form, the medical or other expert proof must be under oath, Grasso v. Angerami, 79 N.Y. 2d 813, 580 N.Y.S. 2d 178 (1991). Whether "admissable form" will be required remains to be seen but prudence dictates that you ask the doctor to affirm his report under penalty of perjury thereby equating it with an affidavit. CPLR 2106. If obtaining medical proof is difficult because of the physician/patient privilege, other facts showing need for the appointment should be set forth and the court asked to authorize the Court Evaluator to inspect otherwise confidential records. Mental Hygiene L. §81.09(d).

29Mental Hygiene L. §81.15 (a).

30Mental Hygiene L. §81.15 (b)(5) & (c)(7).

31Mental Hygiene L. §81.09(a). Section 81.40 requires that evaluators complete a training program. The requirement can be waived, Mental Hygiene L. §81.40(c). Obviously, until the training programs are widely utilized, the requirement will have to be waived. Meanwhile, the office of Court Administration has notified those presently on the list of fiduciaries pursuant to Part 36 of the Chief Judge's Rules, that they will be added to this list.

32Former Mental Hygiene L. §§ 77.09 & 78.03(e).

33Law Revision Commission Comment, Mental Hygiene L. §81.10.

34Mental Hygiene L. §81.10. If the Court appoints counsel, however, it may dispense with a Court Evaluator or suspend the appointment of one already appointed.

35Mental Hygiene L. §81.12(b). In addition, the Evaluator may retain an independant medical expert if the Court finds it appropriate, Mental Hygiene L. §81.09(7); and who would also likely testify.

36Mental Hygiene L. §81.12 (a).

37Matter of Flowers, 148 Misc. 2d 166, 559 N.Y.S. 2d 775 (Sup. Ct. Kings Co. 1990); Loughman, "Conservatorship Contests", 16 Westchester Bar J. 185, 189-94 (1989). Pursuant to recent changes in the law, the Court's ability to allow the Court Evaluator access to confidential records is expressly subject to other provisions of state or federal law which provide otherwise. L. 1993, c. 32, §4 (amending Mental Hygiene L. §81.09(d)). Those reductions could be problematic if, for example, the reason for the alleged incapacity is drug or alcohol abuse because strict federal confidentiality statutes, 42 U.S.C. §§ 290dd-3 & 290ee-3 and regulations 42 C.F.R. §§ 2.1 et seq., may prevent disclosure even if state regulations, e.g. Mental Hygiene L. §33.13; are less restrictive.

38Mental Hygiene L. §77.07.

39Mental Hygiene L. §81.11. Although prior law required attendance "unless he is unable to attend by reason of physical or other inability ..." Former Mental Hygiene L. §77.07(b); it was often waived based upon a simple recitation in the medical affirmation unless opposition were raised. The Law Revision Commission Comments make clear that the AIP's attendance will be waived only in "rare and exceptional circumstances" when the AIP is out of state or would have no meaningful participation. L. Revision Commission Comment to Mental Hygiene L. §81.11. Whether time will dilute the minimum for "rare and exceptional" remains to be seen.

40Mental Hygiene L. §81.14 (c). At the commencement of the hearing, however, the Court must inform the AIP of his or her right to ask that the hearing be closed to the public and the record sealed. Mental Hygiene L. §81.14(d).

41Mental Hygiene L. §81.19(a).

42Mental Hygiene L. §81.19(b&c).

43Mental Hygiene L. §81.19 (d). The statute refers to G.O.L. §§ 5-1501, 5-1601 & 5-1602 instead of that term power of attorney and Pub. Health L. §§ 2965 & 2981 instead of DNRs and health care proxies.

44Mental Hygiene L. §81.23(b).

45Mental Hygiene L. §81.24.

46Mental Hygiene L. §81.23(a).

47Mental Hygiene L. §81.16(f). If the Attorney General or attorney for a local Department of Social Service represents the petitioner, he or she may be awarded reasonable compensation as well. L. 1993, c. 32, §7.

48Mental Hygiene L. §§ 77.27 & 78.21. Committee's commissions, and prior to 1974, conservator's commissions were the same as those allowed to executors or administrators under S.C.P.A §2307. Although the Court was given greater flexibility for Conservators commissions after the 1974 amendment, in the author's experience S.C.P.A. §2307 was routinely followed.

49Mental Hygiene L. §81.28(a); see Law Revision Commission Comments to §81.28.

50Mental Hygiene L. §81.10(f).

51Mental Hygiene L. §81.09(f).

52Id.

53Mental Hygiene L. §81.23(a)(l). The Court may appoint temporary guardian during the pendency of the proceedings if necessary.

54Mental Hygiene L. §81.16(b). The special guardian would be appointed if necessary in connection with a protective arrangement for the AIP or for a one-shot transaction.

55Mental Hygiene L. §81.32(f). If the estate is less than $5,000 this fee will be paid by the County Treasurer or comptroller of the City of New York.

56Mental Hygiene L. §81.33(e). In addition, if the Court feels the need to appoint counsel for on AIP alive at the time of an intermediate or final accounting, that counsel may be paid out of the estate as well. Id.

57Mental Hygiene L. §81.27.

58Mental Hygiene L. §81.25.

59Mental Hygiene L. §81.26.

60Mental Hygiene L. §81.29(a).

61Mental Hygiene L. §81.21(a).

62Mental Hygiene L. §81.16(c)(l). Among those powers is the right to file notice in real property records of the appointment of the guardian Mental Hygiene L. §81.20(a)(6)(vi), thereby providing notice that the AIP may not be able to convey title. Reference in Article 17 of the Real Property Actions and Procedures Law to sale of real estate owned by an incompetent or conservatee is deemed to apply to AIPs. L. 1992, c. 698, §4.

63Mental Hygiene L. §81.44 (as amended L. 1993, c. 32, §16).

64Mental Hygiene L. §81.22.

65Matter of Grinker, 77 N.Y. 2d 703, 570 N.Y.S. 2d 448 (1991). The Court of Appeals held: "[a]ssuming, without deciding that Mental Hygiene Law §77.19 authorizes a grant of limited power over a conservatee's person incidentally related to the primary power over property {see e.g., Matter of Evelyn P., 135 A.D. 2d 716, 522 N.Y.S. 2d 617), we conclude that it clearly does not authorize the potent personal transformation of involuntary commitment of a conservatee to a nursing home" (see, Matter of Detzel 134 A.D. 2d 716, 522 N.Y.S. 2d 6; see also, Moore, the Durable Power of Attorney as an Alternative to the Improper Use of Conservatorship for Health Care Decision Making, 60 St. John's L. Rev. 631, 638-653 [1986]; accord, Matter of Fisher, 147 Misc. 2d 329, 552 N.Y.S. 2d 807 (Sup. Ct. N.Y.Co. 1989); Matter of Fisher, N.Y.L.J., Sept 8, 1989, p. 22, col. 5 (Surr. Ct. Bronx Co. 1989).

66Mental Hygiene L. §81.22 (a)(3-6).

67MentaI Hygiene L. §81.22 (a)(8).

68Mental Hygiene L. §81.29 (e).

69Mental Hygiene L. §81.22(b)(2).

70Mental Hygiene L. §81.29(d).

71Mental Hygiene L. §81.29(e). The Law Revision Comments refer to the existing law on Health Care Proxies, Pub. Health L. §2980 et seq., Do Not Rescuscitate Orders and Surrogates, Pub. Health L. § 2965 et seq. and living wills, Matter of O'Connor, 72 N.Y. 2d 517, 534 N.Y.S. 2d 886 (1988); see Loughman, "The Right to Die with Dignity: Protect It With A Living Will", 17 Westchester Bar J. 11 (1990).

72Mental Hygiene L. §81.22(a)(9). The statute continues, however: "so long as it is reasonable under the circumstances to maintain the incapacitated person in the community, preferable in the home of the incapacitated person." Thus the guardian willing to take the chance could confine an unwilling AIP to a hospital or nursing home if the alternative were not reasonable. More likely the provision will be the basis to seek court approval of the confinement.

73Mental Hygiene L. §81.22. (b)(l) (as amended L. 1993, c. 32, §12.

74140 Misc. 2d 393, 530 N.Y.S. 2d 981 (Surr. Ct. Nassau Co. 1988) see Matter of Daly, 142 Misc. 2d 85, 536 N.Y.S 2d 393 (Surr. Ct. Nassau Co. 1988) (SCPA Art. 17-A Guardian).

75Mental Hygiene L. §81.21.

76Former Mental Hygiene L. §77.25(c); Matter of Niner, 126 Misc. 2d 1097, 484 N.Y.S. 2d 997 (Surr. Ct. N.Y.Co. 1984). Even someone adjudicated incompetent is not per se incapable of making a will. Matter of Coe, 47 App. Div. 177, 62 N.Y.S. 376 (3d Dep't 1900); see Wadsworth v. Sharpsteen, 8 N.Y. 388 (1853) (dicta); Matter of Stephani, 250 App. Div. 253, 294 N.Y.S. 624 (3d Dep't 1937) (commitment in mental hospital without adjudication); Matter of Barney, 185 App. Div. 782, 174 N.Y.S. 242 (1st Dep't 1919) (same); Matter of Niner, supra (dicta).

77Mental Hygiene L. §81.29(b). Indeed the finding of incapacity is not conclusive evidence of lack of capacity to do anything except those rights and powers given to the guardian. Mental Hygiene L. §81.29(a); and a guardian may not be given the power to make a will or codicil. Mental Hygiene L. §81.21(a).

78Mental Hygiene L. §81.29(d).

79Mental Hygiene L. §81.30.

80Id.

81Mental Hygiene L. §81.31. Conservator's and committee's reports are due in January. Former Mental Hygiene L. §§ 77.29; 78.23. Reports of Guardians or Committees for Veterans and Infant Wards of the United States Veteran's Administration are due on the anniversary date of the fiduciary's appointment. Mental Hygiene L. §79.17(a). Article 79 of the Mental Hygiene Law provides for the appointment of a guardian for a ward of the United States Veteran Administration. Mental Hygiene L. §§ 79.01 and 79.03. Although §79.09 allows the court to consolidate the proceeding with a conservatorship or incompetency proceeding, Article 79 supercedes any inconsistencies with other provisions of law. The new statute left Article 79 in place but does make clear that references to conservators and committees in existing statutes is to be construed to include guardians under Article 81.L. 1992, c. 698, §4.

82Mental Hygiene L. §81.32.

83Former Mental Hygiene L. §78.25.

84Mental Hygiene L. §81.13. The statute was recently amended to Court to ease this restriction "for good cause shown." L. 1993, c. 32, § 6 (amending §81.13).

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