A guardianship lawyer is called in when a person can no longer take care of themselves and needs someone appointed to act for them. In New York a guardian for an adult can only be appointed by a court, under Article 81 of the Mental Hygiene Law, so lawyers are involved at every stage. What surprises most families is how many of them there are. In a typical Article 81 case at least four lawyers take part, counting the judge, and often more. Some are retained by the people involved; the rest are appointed by the judge from lists of attorneys who have agreed to serve. This page explains who they are and what each one does, so that a petitioner, a relative, or the person the case is about can see where they fit. For an overview of the firm’s guardianship practice, see our guardianship attorneys page.
Lawyers retained by the people involved
The petitioner, the person the case is about, and any relative or friend who takes a position can each have their own counsel.
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Lawyer for the petitioner
The petitioner’s lawyer prepares and files the guardianship petition and represents the person who filed it. Petitions are usually brought by a concerned relative, or by the nursing home or long-term care facility where the person lives. Their lawyer advances the petitioner’s position that a guardian is needed and that a particular person should be appointed.
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Lawyer for the alleged incapacitated person
This lawyer represents the person who is being considered for a guardian. More often than not that person is too incapacitated to hire counsel, so the judge appoints a lawyer from the list of attorneys willing to serve in that role. Some clients can communicate with their lawyer, at least somewhat, and some have strong views: they do not want a guardian at all, or they want a favored relative or friend rather than the person the petitioner proposes. The lawyer advances those wishes.
Other clients are so incapacitated that the lawyer has to work out what is in their best interests. As a practical matter, if the client cannot communicate cohesively with their own lawyer, they probably need a guardian, and the real question becomes who that guardian should be.
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Lawyers for relatives and friends
Each relative or friend of the person who may need a guardian can be represented by their own lawyer. When there is disagreement, the people involved tend to group into camps, with each side of the dispute having its own attorney. The disagreements are usually over two things: whether the person needs a guardian at all, and who the guardian should be. If you are on the receiving end of a petition and want to contest it, see how to fight a guardianship.
Lawyers the judge appoints
Each judge keeps lists of attorneys willing to serve as court evaluator, temporary guardian, permanent guardian and guardian ad litem.
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Court evaluator
A court evaluator is appointed in every New York guardianship case. The evaluator visits the person where they live, interviews them and everyone involved in their life, and prepares a report for the judge. The judge does not have time to visit every person whose guardianship is under consideration, so the judge relies heavily on the court evaluator for information about the circumstances of that person’s life. The court evaluator is typically a guardianship attorney, chosen from the list of lawyers willing to serve in that capacity.
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Temporary guardian
At the beginning of a case it may seem likely that the person will need a guardian without it being clear yet whether they actually will, or who the guardian should be. A guardianship proceeding can span many months and require multiple hearings: the judge has to wait for the court evaluator to investigate and report, and may also have to wait for the relatives and friends, and sometimes the person themselves, to agree on who the guardian should be, if anyone. For that transition period the court can appoint a temporary guardian, who performs the duties of a guardian while the proceeding is pending. The temporary guardian is usually a lawyer from the judge’s list, and often goes on to become the permanent court-appointed guardian.
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Court-appointed guardian
If no relative steps forward to serve, or the relatives cannot agree on which of them should serve, the court appoints a guardian from its list of attorneys willing to take the role. That attorney then assumes the responsibilities of a guardian, which is a substantial job: visiting the person at least four times a year, making sure they are well cared for, making medical decisions for them, managing their money and doing whatever else the judge directs in the guardianship order. A court-appointed guardian must file a report with the court in May of each year showing what money was spent and on what, what the person started the year with and what they have left.
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Guardian ad litem
A guardian ad litem is a guardian for the proceeding only. If someone affected by the case has no guardian and lacks the mental capacity to understand the proceeding, the judge appoints a guardian ad litem to represent that person’s interests. This is separate from the temporary guardian for the person who is the subject of the case; it is for other people involved. The guardian ad litem is a guardianship lawyer from the list of attorneys willing to serve in that role. They communicate with their client to find out what the client’s interests are and, if the client cannot communicate, work out what the client needs as best they can.
The court’s own lawyers
The court attorney keeps the case moving; the judge decides it.
A court attorney assists the judge with the day-to-day handling of the case and functions, in practice, as an assistant judge. The court attorney makes sure the case stays on track, checks on its status and holds conferences with the guardianship lawyers involved. A court attorney assigned to guardianship work is usually a guardianship attorney as well.
The judge, typically a lawyer by training, decides whether the person needs a guardian and, if so, who will serve. The guardian can be a relative, an administrator of the facility where the person lives, or a lawyer from the list of willing attorneys that each judge maintains. Guardianship cases are complex, and a judge cannot resolve them without the help of the retained and appointed lawyers described above.
Who does what, at a glance
The same roles, summarised.
| Role | How chosen | What they do |
|---|---|---|
| Lawyer for the petitioner | Retained by the petitioner | Files the petition; argues that a guardian is needed and who it should be |
| Lawyer for the alleged incapacitated person | Usually appointed by the judge | Advances the person’s wishes or, failing that, their best interests |
| Lawyers for relatives and friends | Retained by each relative or friend | Take a side on whether a guardian is needed and who it should be |
| Court evaluator | Appointed by the judge in every case | Visits, interviews and reports to the judge |
| Temporary guardian | Appointed by the judge from the list | Acts as guardian while the case is pending |
| Court-appointed guardian | Appointed by the judge when no suitable relative serves | Visits at least four times a year, manages care and money, reports each May |
| Guardian ad litem | Appointed by the judge from the list | Represents another affected person who cannot understand the proceeding |
| Court attorney | Court staff | Keeps the case on track; conducts conferences |
| Judge | Assigned by the court | Decides whether a guardian is needed and who serves |
Talk to a guardianship lawyer
We have served in most of these roles.
Albert Goodwin has practiced guardianship law in New York since 2008, in both Surrogate’s Court and Supreme Court, and has been on the court lists of court evaluators and court-appointed guardians. Whether you are thinking of filing a petition, have been served with one, or are a relative trying to work out where you stand, call us at 212-233-1233 or email [email protected] and we will explain what the lawyers in your case are likely to do next.
