How to Establish a Guardianship in New York: An Article 81 Step-by-Step Guide

By Albert Goodwin, Esq., Law Offices of Albert Goodwin. The firm has handled New York estate and guardianship matters since 2008.

This page explains the procedure for starting an adult guardianship in New York under Article 81 of the Mental Hygiene Law (MHL). It covers the steps from choosing the right statute and court to the reports a guardian files after appointment. It does not cover what a guardian does day to day or which type of guardian fits a family's situation. Those topics have their own pages, linked below.

Step 1: Choose the Right Statute and the Right Court

New York has two main adult guardianship statutes, and they are filed in different courts.

• MHL Article 81: Used for adults whose functional limitations, from dementia, stroke, brain injury, mental illness or another cause, leave them unable to manage personal needs or property. Article 81 cases are generally brought in the Supreme Court. Outside New York City, County Court also has jurisdiction (MHL 81.04). Venue is the county where the person lives or is physically present (MHL 81.05).
• Surrogate's Court Procedure Act (SCPA) Article 17-A: Used for people with intellectual or developmental disabilities, often when a young adult with a lifelong disability turns 18. These cases are filed in Surrogate's Court.

The evidence each statute requires is different. A 17-A petition must be supported by certifications from two physicians, or one physician and one licensed psychologist, confirming the disability (SCPA 1750 and 1750-a). Article 81 has no such certification requirement to file. The petition must instead describe the person's functional limitations with specific facts, and the court decides capacity at a hearing on all the evidence.

The rest of this guide focuses on Article 81. For help deciding between the two, see what type of guardianship is right for my situation.

Step 2: Confirm That a Guardianship Is Needed

Article 81 requires the court to use the least restrictive form of intervention (MHL 81.02(a)(2)). Before appointing a guardian, the judge must consider whether other resources already meet the person's needs. Those resources include a durable power of attorney, a health care proxy, a trust, a representative payee or family support.

If the person signed a valid power of attorney or health care proxy while competent, and the agent is acting properly, a guardianship may be unnecessary or limited to narrow powers. If the agent is misusing the authority, a guardianship proceeding can be used to review and, where warranted, revoke it. See what to do when an agent abuses a power of attorney.

For warning signs that suggest it may be time to act, see is it time to start a guardianship?

Step 3: Confirm You Have Standing to File

MHL 81.06 lists who may bring an Article 81 petition. The list includes:

• The person alleged to be incapacitated (the "AIP")
• A presumptive distributee, meaning someone who would inherit if the AIP died without a will (for example a spouse, child, parent or sibling)
• A person with whom the AIP lives
• A person otherwise concerned with the AIP's welfare, which can include a friend or neighbor
• The chief executive officer of a facility where the AIP lives or is about to be admitted, such as a hospital or nursing home
• Certain public officials, including local departments of social services (for example Adult Protective Services)

Many Article 81 petitions are filed by nursing homes or hospitals that need someone with authority to apply for Medicaid or approve a discharge plan. Family members can participate in those cases and ask to be named guardian.

Step 4: Draft the Petition and Proposed Order to Show Cause

An Article 81 case starts with a verified petition and a proposed order to show cause, not a summons. MHL 81.08 sets out what the petition must contain, including:

• The AIP's name, age, address and current living situation
• Specific factual allegations describing the AIP's functional limitations and why they cause the AIP to be unable to provide for personal needs or property management
• The particular powers requested, such as authority to manage bank accounts, apply for Medicaid, choose a residence or consent to medical treatment
• Whether the AIP has executed a power of attorney, health care proxy or other advance directive
• The available resources considered and why they are insufficient
• The AIP's approximate assets and income
• The names and addresses of relatives and others who must receive notice
• The proposed guardian and that person's relationship to the AIP
• Whether a temporary guardian is needed while the case is pending

Vague allegations such as "Mom is confused" are weak. Judges want dated, concrete facts: unpaid bills, missed medications, a fall at home, a scam that drained an account, or a discharge that cannot happen without a guardian.

The papers are filed with the county clerk along with a Request for Judicial Intervention (RJI) so the case is assigned to a judge. When the judge signs the order to show cause, it sets the hearing date and usually appoints a court evaluator, and in some cases counsel for the AIP.

Step 5: Serve the AIP and Give Notice to Relatives

Service in an Article 81 case is strict, and errors can delay or defeat the case.

• Personal service on the AIP: The order to show cause and petition must be delivered by hand to the AIP at least 14 days before the hearing (MHL 81.07). This requirement cannot be waived. The order to show cause must include a plain-language notice in large type explaining the AIP's rights and what the case could mean for them.
• Service on the court evaluator, counsel and MHLS: Where they are appointed or involved, they must also be served under the timetable in MHL 81.07.
• Notice to others: The petitioner must mail notice of the proceeding to the AIP's spouse, parents, adult children, adult siblings, the person the AIP lives with, the facility where the AIP lives, and others listed in MHL 81.07, generally at least 14 days before the hearing.

Affidavits of service and mailing must be filed before the hearing.

Step 6: The Court Evaluator, Counsel and Mental Hygiene Legal Service

Several lawyers usually take part in an Article 81 case, often four or more if you count the judge. Each has a defined role.

• Petitioner's attorney: Prepares the papers, handles service and presents the case at the hearing.
• Court evaluator: A neutral person, often an attorney, appointed by the court from the list kept under Part 36 of the Rules of the Chief Judge. If the AIP lives in a facility licensed by the Office of Mental Health or the Office for People With Developmental Disabilities, Mental Hygiene Legal Service (MHLS) is appointed as evaluator (MHL 81.09). The evaluator meets the AIP, explains the case, interviews family and caregivers, reviews finances and records, and files a written report with recommendations.
• Counsel for the AIP: The AIP may hire a lawyer. The court must appoint counsel in certain situations, including when the AIP asks for one, when the AIP opposes the petition, when major decisions such as nursing home placement are at issue, or when the court decides counsel is needed (MHL 81.10). MHLS often serves as counsel. Unlike the evaluator, counsel advocates for the AIP's wishes.
• Attorneys for other parties: Relatives who disagree, a facility, or a social services agency may appear through their own lawyers.

If you have received papers and want to oppose a petition, see how to defend against a guardianship.

Step 7: The Hearing

MHL 81.11 directs that the hearing be held no more than 28 days after the order to show cause is signed. Adjournments are common, especially when service is delayed or the case is contested.

• The AIP's presence: The hearing must be conducted in the AIP's presence, either in court or where the AIP lives, such as a hospital or nursing home. The court may proceed without the AIP only on specific findings, for example that the AIP is completely unable to participate or would gain nothing from participating (MHL 81.11(c)).
• Jury trial: The AIP, or a party, may demand a jury on the question of incapacity (MHL 81.11(f)).
• Burden of proof: The petitioner must prove incapacity by clear and convincing evidence (MHL 81.12(a)). This is a higher standard than in most civil cases.
• Two-part test: The court must find that the AIP is likely to suffer harm because they cannot provide for personal needs or property management, and that they cannot adequately understand and appreciate the nature and consequences of that inability (MHL 81.02(b)).
• Evidence: Testimony usually comes from family, caregivers, a treating physician or social worker, and the court evaluator. Medical records and the evaluator's report are commonly received.

If the court grants the petition, it must make written findings on the AIP's specific functional limitations and grant only the powers those limitations require (MHL 81.15). A guardian may be appointed for personal needs, property management or both. The statute directs the court to issue its decision within seven days after the hearing (MHL 81.13).

Step 8: Who the Court Appoints

MHL 81.19 governs eligibility. An adult individual, a not-for-profit corporation, or a community guardian program may serve. Citizenship is not a listed requirement. In choosing a guardian, the court considers factors such as the AIP's wishes and any prior nomination, the proposed guardian's relationship with the AIP, the care and services the proposed guardian has provided, and any conflicts of interest. A health care or residential provider serving the AIP generally cannot be appointed, subject to narrow exceptions.

When relatives cannot agree, the court may appoint an independent guardian from the Part 36 list instead of a family member. That decision is discretionary. For more on eligibility and the different guardian roles, see the three types of guardians.

Step 9: Bond, Oath, Training and the Commission

A guardian has no authority until the court issues a commission. To qualify, the guardian generally must:

• Post a bond: The court sets the amount based on the property under the guardian's control, or may dispense with the bond (MHL 81.25). The premium is paid from the incapacitated person's funds.
• File an oath and designation: The guardian swears to perform the duties faithfully and designates the court clerk to receive legal papers on the guardian's behalf (MHL 81.26).
• Complete guardian training: Each guardian must complete a training program approved by the Chief Administrator of the Courts unless the court waives it (MHL 81.39).

Once these papers are filed, the clerk issues the commission (MHL 81.27). Banks, Medicaid offices, hospitals and landlords will ask for a certified copy of the commission before dealing with the guardian.

Step 10: Initial and Annual Reports

Appointment begins a period of court supervision.

• Initial report: Due within 90 days after the commission issues (MHL 81.30). It lists the incapacitated person's assets and describes the care and living arrangements in place.
• Annual report: Filed each year during May (MHL 81.31). It accounts for income and expenses and reports on the person's health and living situation.
• Court examiner review: A court examiner reviews these reports and may raise objections or require corrections (MHL 81.32).

For the guardian's ongoing duties, see the responsibilities of a guardian, what a guardian of the person does and what a guardian of the property does.

Emergencies: Temporary Guardians

A full guardianship takes time. If there is immediate risk, the petitioner can ask the court to appoint a temporary guardian when the order to show cause is signed, or at any point before the final decision (MHL 81.23(a)). The court must find danger in the reasonably foreseeable future to the AIP's health and well-being, or danger of waste, misappropriation or loss of property.

Common reasons include an exploiting caregiver with access to accounts, a pending eviction, an imminent hospital discharge with no safe plan, or a deadline to file a Medicaid application. Temporary powers are limited to what the emergency requires. The court may also issue other provisional remedies, such as an order freezing accounts while the case proceeds. For signs of financial exploitation within a family, see preventing financial abuse of seniors.

How Long the Process Takes

Timing depends on the court calendar, service problems and whether anyone objects. The statutory deadlines are a starting point, not a guarantee.

• Preparing the petition: Days to a few weeks, depending on how quickly medical and financial information can be gathered.
• Order to show cause signed: Often within days after filing, sooner when temporary relief is requested.
• Hearing: Scheduled within 28 days of signing under MHL 81.11, though adjournments frequently push it later.
• Decision and order: The statute calls for a decision within seven days of the hearing. Settling the written order and judgment can take additional weeks.
• Commission: Issues once the bond, oath and designation are filed and training is completed or waived.

In our practice, an uncontested Article 81 case with cooperative family members and organized records often moves from filing to commission in roughly two to four months. Contested cases can take considerably longer.

Contested and Uncontested Cases

In an uncontested case, the AIP does not object or cannot meaningfully object, family members agree on the guardian, and the evaluator supports the petition. These cases often resolve at a single hearing, sometimes on consent to a limited set of powers.

A contested case usually involves one of three patterns. The AIP objects and has counsel arguing that they can manage with help. Relatives disagree about who should serve, often with accusations about past handling of money. Or a party argues that an existing power of attorney or health care proxy makes a guardian unnecessary. Contested cases tend to involve more hearing dates, medical testimony, financial records and, sometimes, a jury demand. They cost more and are less predictable.

Costs and Who Pays

The main expenses in an Article 81 case are:

• Court filing fees: The Supreme Court index number fee and the RJI fee under CPLR 8018 and 8020. A petitioner who cannot afford the fees may apply for poor person relief.
• Court evaluator's fee: Set by the judge based on the work performed.
• Fee for court-appointed counsel for the AIP: Also set by the judge.
• Petitioner's attorney's fees: The court may direct that reasonable fees be paid from the incapacitated person's funds when a guardian is appointed.
• Bond premium: Based on the amount of property under the guardian's control.
• Guardian's commission: Allowed under statutory rates. See how much a guardian gets in commissions.

When a guardian is appointed, these fees are usually paid from the incapacitated person's estate. If the petition is dismissed, the court may direct the petitioner to pay the evaluator's and counsel fees (MHL 81.09(f), 81.10(f)). Where the AIP has few assets, fees may be reduced or paid under other arrangements the court approves. Overall cost depends heavily on whether the case is contested and how complex the finances are, so we discuss expected costs with each client before filing.

County Practice Notes

Article 81 cases in Manhattan, Brooklyn, the Bronx, Queens and Staten Island are heard in the Supreme Court in each borough. On Long Island and in Westchester, cases are heard in Supreme Court in Nassau, Suffolk and Westchester counties. Each county assigns guardianship cases to designated judges or parts and has its own guardianship staff and court examiners who review reports. Local requirements for proposed orders, scheduling and training differ, so check the county's current rules before filing. The New York State Unified Court System publishes guardianship forms and guidance on its website.

Frequently Asked Questions

Do I need a doctor's letter to file an Article 81 petition?

No physician certification is required to file under Article 81. Medical evidence still helps prove functional limitations at the hearing. A 17-A petition in Surrogate's Court does require physician or psychologist certifications.

Can the person refuse to come to court?

The hearing must be held in the AIP's presence unless the court makes specific findings that excuse it. When the AIP cannot travel, the hearing is often held at the hospital, nursing home or home where the AIP lives.

Can a guardianship be limited?

Yes. Article 81 requires the court to grant only the powers needed to address the person's specific limitations. Many guardianships cover only property management, or only certain decisions.

Can a guardianship end?

Yes. The guardian, the incapacitated person or another interested party may move to modify or end the guardianship if the person regains capacity or circumstances change (MHL 81.36).

More on New York Guardianships

• Is it time to start a guardianship?
• What type of guardianship is right for my situation?
• The three types of guardians
• The responsibilities of a guardian
• What does the guardian of a person do?
• What does a guardian of property do?
• How to defend against a guardianship
• Preventing financial abuse of seniors
• How much does a guardian get in commissions?
• Advance directives and health care proxies

Speak With a New York Guardianship Attorney

The Law Offices of Albert Goodwin has represented petitioners, family members and people facing guardianship petitions since 2008. We handle cases in Manhattan, Brooklyn, the Bronx, Queens, Staten Island, Nassau County, Suffolk County and Westchester County. We can review whether Article 81 or 17-A applies, whether a less restrictive option will work, and what your case is likely to involve. Call 212-233-1233 or email [email protected].

This page provides general information about New York guardianship procedure and is not legal advice. Statutory requirements and local court rules change. Confirm current law before acting on any deadline.