In New York, pursuant to Article 81 of the Mental Hygiene Law, an individual is “incapacitated” if it is proven by clear and convincing evidence, that the individual is likely to suffer harm as the individual is unable to provide for his personal needs and/or property management and the individual is unable to adequately understand and appreciate the nature and consequences of such inability.
The New York legislature enacted Article 81 to tailor the guardianship to meet the individual needs of the person by taking into account the personal wishes, preferences, and desires of the person. A guardianship is intended to afford the person with the greatest amount of independence. In other words, a guardianship is intended to be the least restrictive form of intervention. The court will need to investigate what decisions the individual is either able or unable to make.
