In a proceeding under Mental Hygiene Law Article 81, the alleged incapacitated person (“AIP”) is served with a petition alleging that she is incapacitated and requires a guardian. If the AIP disputes the allegations and objects to the guardianship, she should exercise her right to engage legal counsel to defend (see MHL § 81.10).
At the start of the case, the AIP’s counsel should immediately review the petition to determine whether it is legally sufficient. To state a claim, the petitioner is required to provide specific factual allegations that the AIP (1) is unable to provide for her personal needs or unable to manage her property and financial affairs, and (2) cannot adequately understand and appreciate the nature and consequences of such inability (see MHL §§ 81.02; 81.08).
If the allegations are conclusory or contradicted by documentary evidence, counsel should consider making a motion to dismiss pursuant to CPLR 3211 (see SRW Assocs. v Bellport Beach Prop. Owners, 129 AD2d 328, 331 [2d Dept 1987]; Matter of Parker, 162 Misc 2d 733, 734-735 [Sup Ct, Onan Co 1994] [holding that a petition that does not detail the specific functional limitations of the AIP, as required by MHL § 81.08, deprives the AIP of his right to due process as he is “left in the dark as to his purported incapacities thereby effectively precluding him from mounting any meaningful defense thereto”]; see also Matter of K.B. [D.B.], 50 Misc 3d 1219[A], *1 [Sup Ct, Dutchess County 2016]; Matter of Teitelbaum, 10 Misc 3d 659, 660 [Sup Ct, Kings County 2005]).
In Matter of K.B. [D.B.], for example, the court dismissed an Article 81 petition alleging that the AIP:
“does not have the physical or mental ability to manage her role in the divorce action and property, and having suffered from mental illness earlier in her life and cannot understand the nature and consequences of such inability. The AIP does not have the physical or mental ability to obtain, administer, protect and dispose of real or personal property, intangible property, benefits or income. In addition, she does not have the ability to budget or allocate resources for herself or her family, nor does she have the ability to direct others to do the same on her behalf. She has no knowledge of her existing debts, her bank account balances, income or her resources” (Matter of K.B. [D.B.], 50 Misc. 3d at *1).
The court concluded that the petition was insufficient to state a claim because it lacked meaningful detail and “specific factual allegations” of incapacity, as required by MHL § 81.08(a)(4) and (5) (id.). Similarly, in Matter of Parker the court dismissed the petition where the petitioner provided a physician’s note stating that the AIP did not understand his medical condition and that his ability to understand his affairs was impaired. The Court held that this conclusory opinion was insufficient. There were no references to any medical test results or any specific evaluations of the AIP’s mental or physical condition or functional level (see 162 Misc2d at 734).