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Volume 10 - Opinions of Counsel SBRPS No. 15

Opinions of Counsel index

Senior citizens exemption (application) (guardian) - Mental Hygiene Law, §§ 81.21, 81.22; Real Property Tax Law, § 467:

Where a parcel is otherwise entitled to a senior citizens real property tax exemption, the exemption may be granted despite the fact that application for such exemption is made by a guardian appointed pursuant to the provisions of Article 81 of the Mental Hygiene Law on behalf of the incapacitated person.

Our opinion has been requested regarding the senior citizens real property tax exemption (Real Property Tax Law, §467). On May 17, 1984, a State Supreme Court Justice appointed a legal guardian on behalf of an incapacitated person. The guardian has applied for the exemption on behalf of the incapacitated person, and the question is whether the exemption may be granted under these circumstances.

Eligibility for the senior citizens exemption from real property taxation is contingent upon satisfaction of several criteria, including “ownership” by eligible owners with limited incomes (RPTL, §467(1)(a)). Moreover, section 467(5) provides, in part, that the “[a]pplication for such exemption must be made by the owner, or all of the owners....” For purposes of this inquiry, we assume that the sole questions are as to the effect of the guardianship upon ownership and the filing of the exemption application, all other exemption criteria (e.g., income, residency) being satisfied.

Article 81 of the Mental Hygiene Law (added L.1992, c.698) governs the appointment of guardians for the personal and property needs of individuals who are incapacitated. Among the powers which the court may grant to a guardian is to “apply for government and private benefits” (Mental Hygiene Law, §§81.21(a)(12) [property management], 81.22(a)(7) [personal needs]).

In the papers enclosed with the inquiry in question, the judge’s order grants the guardian authority “extend[ing] to all of the property of the incapacitated person, both real and personal, which the Guardian shall preserve and protect....” As provided in section 81.20(a)(6)(vi) of the Mental Hygiene Law, the Order also directs the guardian to record the guardianship appointment in the County Clerk’s office. Finally, citing section 81.22, the Order also authorizes the guardian to apply for government and private benefits.

Whether one considers a senior citizens real property tax exemption to be related to property management or personal needs, it certainly appears to be a governmental benefit. As such, a guardian’s seeking that exemption on behalf of an incapacitated person seems an appropriate exercise. Moreover, applying for a tax benefit to which one may be entitled appears to be a prudent act. A guardian doing so on behalf of an incapacitated person may be said to be applying what the law refers to as “substituted judgment,” that is taking an action which the incapacitated person would likely do on his or her own behalf if he or she had the capacity to do so (Matter of Florence, 140 Misc.2d 393, 530 N.Y.S.2d 981 (Surrogate’s Ct., Nassau Co., 1988)). Consequently, we believe that the filing of the application by the guardian should be deemed to satisfy the application requirement of the above quoted portion of section 467(5).

Finally, we note that in the Law Revision Commission Comments to the bill which enacted Article 81 of the Mental Hygiene Law, it is stated, “Title in all property remains in the incapacitated person and is subject to the control of the guardian only to the extent provided in the order appointing the guardian” (Comments to section 81.29, printed in McKinney’s Consolidated Laws of New York Annotated, Book 34-A (1995 pocket part, p.350)). It appears, therefore, that the incapacitated person in question remains the legal owner of her property, and assuming all other statutory criteria are satisfied, that property may be eligible for a senior citizens exemption, despite the fact that application for such exemption is made by the incapacitated person’s guardian.

June 7, 1995

Updated: