Assistance for Healthcare Facilities

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Assistance for Healthcare Facilities

Helping Nursing Homes and Hospitals Petition for Guardianship

Nursing homes and hospitals often provide care to mentally incapacitated adults who are unable to make their own decisions about finances, healthcare, or other personal matters. In some cases, healthcare facilities have trouble providing medical treatment, discharging the patient, or getting paid, because the patient does not have a power of attorney, health care proxy, or family or friends who can assist with these matters.

In situations like these, Attorney Daniel J. Reiter is called upon to assist nursing homes and hospitals to guide them through the process of having an independent guardian appointed for the resident or patient. With the guardian’s involvement, the facility can continue to treat the incapacitated person, get paid for services rendered, or arrange for a safe discharge when appropriate.

Guardianship Under Mental Hygiene Law Article 81

Mental Hygiene Law Article 81 (MHL Art. 81) is one of two adult guardianship statutes in New York State. MHL Art. 81 can be utilized by a hospital or nursing home to arrange for a guardian to be appointed for an adult in their care.

A petition for guardianship is ussually filed in the Supreme Court or County Court of the county where the alleged incapacitated person resides or is present. The petition should request that an independent guardian be appointed, describe the alleged incapacitated person’s “functional limitations”, and give specific instances and facts that demonstrate those limitations.

In emergency situations, a temporary guardian may be appointed by the judge until a full hearing can be held to determine whether the person needs a permanent guardian appointed.

Attorney Daniel J. Reiter assists hospitals and skilled nursing facilities in all aspects of the adult guardianship process.

How An Independent Guardian Helps Nursing Homes and Their Residents

Nursing homes provide invaluable care for the most vulnerable population, but care costs money. Nursing homes cannot operate for free. Adult guardianship is often an effective and ethical legal tool for meeting the financial needs of nursing homes that provide care to residents who can’t arrange for payment on their own due to mental incapacity.

If an incapacitated resident does not have a power of attorney, or has no family available to arrange for payment, nursing homes can hire an attorney to petition for guardianship. A court-appointed independent guardian can secure income, assets, and government benefits, such as Medicaid and SSI, to pay for the resident’s care.

Hospitals Have a Duty to Safely Discharge Patients

New York hospitals have a duty to safely discharge patients. A hospital may find itself unable to discharge a patient who has completed treatment, but is unable to care for themself due to mental incapacity.

If a hospital cannot safely discharge an incapacitated patient, the hospital may need to have an independent guardian appointed to ensure that the patient is safely discharged to an environment in which they will receive appropriate care and treatment.

Attorney Daniel J. Reiter represents hospitals in these situations by filing an application for guardianship pursuant to MHL Art. 81.

Once appointed, an independent guardian can ensure a safe discharge, and depending on the judge’s findings, can secure income, assets, and government benefits to ensure the hospital is paid for treatment provided.

Ensuring Hospitals and Nursing Homes Are Paid for Treatment Provided

The Law Firm of Daniel J. Reiter, Esq. helps hospitals, nursing homes, and other healthcare facilities in New York City, Long Island, and Westchester County petition for the appointment of an independent guardian for an adult resident or patient.

Learn more about Daniel J. Reiter, read testimonials from other people he’s helped, and get answers to Frequently Asked Questions. Then contact the Law Firm of Daniel J. Reiter, Esq. today to discuss your situation with Daniel.

Frequently Asked Questions

What is the difference between a guardian and a conservator?

Generally, none. New York used to use the terms conservator (today’s version of guardian of the property) and committee (today’s version of guardian of the person). Many states still use the term conservator, but the concept is the same.

If I petition to have a guardian appointed in a Mental Hygiene Law Article 81 proceeding, will I have to serve as guardian?

No. Even if you are the “petitioner” – the person who is asking the judge to appoint a guardian – you can ask the judge to appoint someone else. If there are no family or friends willing and able to serve, the judge can appoint a non-profit organization or “independent” professional guardian to serve.

My disabled child is about to turn 18. Am I automatically able to make decisions for them when they turn 18?

No (except for limited exceptions). In New York, parents are the natural guardians of their children until age 18. However, once a child reaches 18, even if they are developmentally or intellectually disabled, a parent cannot automatically make decisions for their adult child. Guardianship is often necessary for developmentally and intellectually disabled adults who do not have capacity to manage their own affairs without assistance.

How long does it take to get a guardian appointed and authorized to act in a Mental Hygiene Law Article 81 proceeding?

There is no set time. However, from the time counsel is retained, it usually takes about 2-4 months total for the guardian to begin acting. However, if a guardian is needed immediately, the judge can appoint a “temporary guardian” while everything gets sorted out. This speeds up the process.

When is a Kinship Proceeding Necessary?

A Kinship Proceeding in New York Surrogate's Court is necessary primarily in two circumstances:

First, a Kinship Proceeding is often necessary when it is unclear who is entitled to inherit from a deceased person's estate. In New York, a deceased person is called a "decedent".

Second, a Kinship Proceeding is sometimes required to determine who will serve as administrator of an estate when the decedent died without a will and it is unclear who has the right to serve as administrator above all others. An "administrator" is like an executor of an estate of a person who died without a will. Dying without a will is known as dying "intestate".

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What Our Clients Say

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Assistance for Healthcare Facilities

Assistance for Healthcare Facilities

Helping Nursing Homes and Hospitals Petition for Guardianship

Guardianship Under Mental Hygiene Law Article 81

How An Independent Guardian Helps Nursing Homes and Their Residents

Hospitals Have a Duty to Safely Discharge Patients

Ensuring Hospitals and Nursing Homes Are Paid for Treatment Provided

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Frequently Asked Questions

What Our Clients Say

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