Article 81 Guardianship in New York: How to Get Guardianship of an Adult (Process, Cost, and Timeline)

By Albert Goodwin, Esq., New York estate and guardianship attorney. Law Offices of Albert Goodwin, serving the five boroughs of New York City, Long Island, and Westchester.

If your parent has dementia and the bank will not let you pay the mortgage, if a sibling with a power of attorney is draining your mother's accounts, or if a hospital will not discharge your spouse because nobody has legal authority to sign, you have likely been told to "get guardianship." In New York that means a proceeding under Article 81 of the Mental Hygiene Law. This page explains how that proceeding works in practice: where to file, what it costs, how long it takes, when you do not need it, and what happens after the judge signs the order.

The Short Version

• Governing law: Mental Hygiene Law (MHL) Article 81, sections 81.01 through 81.44.
• Court: Supreme Court in the county where the person lives or is physically present (MHL § 81.05). In the five boroughs the petition goes to a dedicated Guardianship Part.
• Standard: Clear and convincing evidence that the person is likely to suffer harm because they cannot provide for personal needs or manage property, and cannot understand the consequences of that inability (MHL §§ 81.02, 81.12).
• Hearing deadline: Within 28 days of the judge signing the order to show cause (MHL § 81.07, § 81.13), subject to extension.
• Realistic timeline: Roughly two to four months from filing to a signed commission in an uncontested case. Contested cases run six months to well over a year.
• Who pays: If the petition is granted, the court usually directs that court evaluator fees, counsel fees, and bond premiums be paid from the incapacitated person's assets. If the petition is dismissed, the court may charge them to the petitioner (MHL §§ 81.09(f), 81.10(f), 81.16(f)).
• Ongoing duties: Initial report within 90 days of the commission (MHL § 81.30) and an annual report each May (MHL § 81.31), reviewed by a court examiner (MHL § 81.32).

Do You Actually Need Guardianship?

Article 81 requires the court to order the least restrictive form of intervention (MHL § 81.02(a)(2)). Before filing, the court expects you to explain why existing arrangements do not work. The court evaluator will ask. You should have an answer. These are the alternatives that most often make a guardianship unnecessary.

• Durable power of attorney: If the person signed a valid statutory short form power of attorney under General Obligations Law § 5-1501 while they still had capacity, the agent can handle banking, bills, real estate, and benefits applications without any court involvement. The problem is that a power of attorney cannot be signed after capacity is lost.
• Health care proxy: Public Health Law Article 29-C lets a named agent make medical decisions once a physician determines the person cannot. A proxy covers treatment and placement decisions but gives no authority over money.
• Family Health Care Decisions Act: For a patient in a hospital or nursing home with no proxy, Public Health Law Article 29-CC (§ 2994-d) lists who may act as surrogate: a court-appointed guardian first, then spouse or domestic partner, adult child, parent, adult sibling, and close friend, in that order. Many families petition for guardianship only to learn that this statute already lets them consent to treatment. It does not cover financial matters or decisions outside a facility.
• MOLST: The Medical Orders for Life-Sustaining Treatment form, approved by the New York State Department of Health, records a patient's decisions about resuscitation and other life-sustaining care and travels with the patient between facilities.
• Supported decision-making agreement: Mental Hygiene Law Article 82, added in 2022, recognizes agreements in which an adult with a disability names supporters who help gather information and communicate decisions. The adult keeps legal authority. Courts now expect petitioners, particularly in Article 17-A matters, to address why supported decision-making would not suffice.
• Trusts and joint arrangements: A revocable trust funded before incapacity lets a successor trustee take over assets. Representative payee status with the Social Security Administration covers benefit checks. A supplemental needs trust can hold funds for a disabled adult without a guardian.
• Single transaction or protective arrangement: Under MHL § 81.16(b), the court may authorize one transaction, such as selling a house or signing a Medicaid application, without appointing a guardian at all.

For help putting these documents in place while a family member still has capacity, see our page on advance directives in New York. If a power of attorney exists but the agent is misusing it, guardianship is one of several remedies. We cover the others on our page about what to do when an agent abuses a power of attorney.

Article 81 vs. Article 17-A: Which One Applies

New York has two adult guardianship statutes. Filing under the wrong one costs months.

Article 81 (Mental Hygiene Law)

• For any adult, regardless of diagnosis, who has functional limitations from dementia, stroke, traumatic brain injury, mental illness, substance use, or physical illness.
• Filed in Supreme Court (or County Court in some counties outside New York City).
• Powers are limited to what the person actually cannot do. The judge may grant some property powers and no personal needs powers, or the reverse.
• Requires a hearing, a court evaluator, and in many cases appointed counsel for the person.
• Guardian files an initial report and annual reports, and must complete a court-approved training course (MHL § 81.39) unless waived.

Article 17-A (Surrogate's Court Procedure Act)

• For adults with an intellectual disability or a developmental disability, generally one that began before age 22 (SCPA §§ 1750, 1750-a).
• Filed in Surrogate's Court, usually by a parent when the child turns 18.
• Requires certifications from two physicians, or one physician and one licensed psychologist.
• Historically plenary: the guardian receives full authority over person and property rather than a list of specific powers. Surrogates in recent years have scrutinized these petitions more closely and have denied or limited them where an Article 81 guardianship, a supported decision-making agreement, or a health care proxy would meet the need.
• Lighter ongoing reporting than Article 81, although a 17-A guardian of property must still account.

A 17-A petition is usually the right choice for a young adult with a lifelong cognitive disability whose parents have always handled everything. Article 81 is the right choice for an adult who had capacity and lost it, or whose limitations are partial.

Who Can File an Article 81 Petition

MHL § 81.06 lists who may commence the proceeding:

• The person alleged to be incapacitated (the "AIP"), who may ask for a guardian voluntarily.
• A presumptive distributee, meaning someone who would inherit if the AIP died without a will.
• An adult who lives with the AIP.
• An executor or administrator of an estate, or a trustee of a trust, of which the AIP is a beneficiary.
• The chief executive officer of a hospital, nursing home, or other facility where the AIP resides.
• Any person otherwise concerned with the AIP's welfare, including a friend, neighbor, or Adult Protective Services.

The AIP must be at least 18 and must either reside in New York or be physically present here (MHL § 81.04). A parent in a Queens nursing home who kept a Florida domicile can still be the subject of a Queens County petition.

Where to File

Under MHL § 81.05, the petition is brought in the Supreme Court of the county where the AIP resides or is physically present. Each of the five boroughs has a Guardianship Part with judges who hear only these matters. Nassau, Suffolk, and Westchester Supreme Courts assign guardianship cases to designated justices. In some counties outside the city the County Court shares jurisdiction.

The Surrogate's Court may also hear an Article 81 petition when the AIP is a party to, or beneficiary of, an estate or trust matter already pending before that Surrogate (MHL § 81.04(b)). This comes up when an heir in a contested probate appears to lack capacity. Filing there avoids two courts ruling on the same person.

The Process, Step by Step

1. Petition and order to show cause (week 0)

The proceeding starts with a verified petition and a proposed order to show cause. MHL § 81.08 requires the petition to describe the AIP's functional limitations, give specific examples of recent behavior showing the need for a guardian, list the exact powers requested, explain what alternatives were considered and why they are insufficient, and identify the proposed guardian and every interested person entitled to notice. Vague allegations such as "she is forgetful" get sent back. Concrete facts, such as three months of unpaid Con Edison bills, a wire transfer to an overseas "grandson," or a wandering incident documented by police, carry weight.

The filing fee for an index number in Supreme Court is $210 (CPLR § 8018), plus $95 for a request for judicial intervention.

2. The judge signs the order and appoints a court evaluator (week 0 to 1)

When the judge signs the order to show cause, the court sets the hearing date, which must be within 28 days (MHL § 81.07(a)). The court appoints a court evaluator from the Part 36 fiduciary list (22 NYCRR Part 36) under MHL § 81.09. The evaluator, often an attorney or social worker, meets the AIP, interviews family, reviews medical and financial records, and files a written report with recommendations on capacity, the proposed guardian, and the powers that should be granted.

If the AIP objects, asks for a lawyer, or the petition seeks authority over major medical treatment or a change of residence, the court must appoint counsel for the AIP under MHL § 81.10, frequently Mental Hygiene Legal Service.

3. Emergency relief: temporary guardian (any time after filing)

If waiting 28 days would cause harm, MHL § 81.23(a) lets the court appoint a temporary guardian on the day the order to show cause is signed. The petitioner must show danger in the reasonably foreseeable future to the AIP's health or well-being, or danger of waste, misappropriation, or loss of property. The court may also enjoin a specific person from transferring assets or freeze accounts under § 81.23(b). A temporary guardian can consent to surgery, stop an eviction, or halt a pending transfer of the home while the full case proceeds.

4. Service (at least 14 days before the hearing)

The AIP must be personally served with the order to show cause and petition at least 14 days before the hearing (MHL § 81.07(e)). Spouse, adult children, parents, siblings, anyone named as agent under a power of attorney or health care proxy, and the facility where the AIP lives receive notice by mail. Defective service is the most common reason a hearing gets adjourned.

5. The hearing (day 28, or later by extension)

MHL § 81.11 governs the hearing. The AIP has the right to be present, to present evidence, to cross-examine witnesses, and to demand a jury. If the AIP cannot come to the courthouse, the judge holds the hearing at the hospital, nursing home, or residence. The petitioner testifies, the court evaluator presents the report, and medical witnesses may appear. The judge must find incapacity by clear and convincing evidence (MHL § 81.12), and must make findings on the record covering the AIP's functional level, the specific powers needed, and the duration of the guardianship (MHL § 81.15).

6. Decision, order, and judgment (within about three weeks after the hearing)

Under MHL § 81.13 the court is to decide within seven days of the hearing and sign the order and judgment within 15 days of the decision. The order and judgment lists every power granted. If the person needs help only with finances, the judge grants property management powers under MHL § 81.21 and nothing more. Courts routinely include Medicaid planning authority, the power to create a supplemental needs trust, and authority to pursue a turnover proceeding under MHL § 81.43 to recover money taken from the AIP.

7. Bond, training, designation, and commission (two to eight weeks after judgment)

Before the guardian can act, several things must happen:

• Bond: MHL § 81.25 lets the court require a surety bond for a property guardian. Judges often dispense with a bond for a family guardian when the assets are modest or when accounts are placed under court restraint so that withdrawals require a judge's signature. When a bond is required, the annual premium, generally a fraction of one percent of the bond amount, is paid from the incapacitated person's funds. Bonding companies check the guardian's credit.
• Training: The guardian must complete a court-approved guardian training course (MHL § 81.39). Many counties offer it online. The court may waive it for professionals or experienced guardians.
• Designation: The guardian signs a designation of the clerk of the court to receive process (MHL § 81.26).
• Commission: Once the bond is filed and training is done, the clerk issues the commission (MHL § 81.27). The commission is the document banks, brokerages, and agencies will ask to see. Order certified copies.

8. Initial report at 90 days and annual reports each May

The guardian files an initial report within 90 days of the commission (MHL § 81.30) listing all assets, income, and the plan for the person's care. Every year thereafter the guardian files an annual report by May 31 for the prior calendar year (MHL § 81.31), with bank statements and receipts. A court examiner, also appointed from the Part 36 list, reviews each report under MHL § 81.32 and reports deficiencies to the judge. Late or incomplete reports lead to compliance conferences and, if uncorrected, removal. Our fiduciary accountings page covers how we prepare these reports and respond to examiner objections.

How Long It Takes

The statute's 28-day clock sounds fast. In practice:

• Uncontested, family guardian, no bond: Two to three months from filing to commission is typical in the five boroughs and on Long Island.
• Uncontested with bond or Part 36 guardian: Three to four months. Bond underwriting and the appointed guardian's qualification add weeks.
• Contested: Six months to more than a year. Adjournments for independent medical evaluations, discovery into financial records, cross-petitions by competing family members, and a jury demand each add time.
• Temporary guardian: Can be in place the same day the order to show cause is signed if the papers justify it.

What an Article 81 Guardianship Costs

Costs fall into court fees, fees for court appointees, bond premiums, and attorney fees. Who pays depends on the outcome.

• Court fees: $210 index number and $95 RJI in Supreme Court. Certified copies of the commission are a few dollars each.
• Court evaluator: Set by the judge after the evaluator files an affirmation of services. The range depends on the hours spent and the size of the AIP's estate. In a straightforward case it is often several hundred to a few thousand dollars; in a contested case with large assets it can be considerably more. Paid from the AIP's assets if the petition is granted (MHL § 81.09(f)).
• Counsel for the AIP: If private counsel is appointed, the fee is set by the court and paid from the AIP's assets (MHL § 81.10(f)). Mental Hygiene Legal Service does not charge.
• Bond premium: Annual, based on the bond amount, paid from the AIP's funds.
• Petitioner's attorney fees: When the petition is granted, the court may award the petitioner's reasonable attorney fees from the AIP's estate (MHL § 81.16(f)). The court reviews the fee affirmation and may reduce it. When the petition is dismissed, the petitioner generally bears their own fees and the court may direct the petitioner to pay the court evaluator and AIP's counsel as well.
• Guardian's compensation: MHL § 81.28 directs the court to set a compensation plan. Courts often use the executor commission rates in SCPA § 2307 as a guide for property guardians, and set an hourly or annual figure for personal needs guardians. Family guardians frequently waive compensation. Any compensation must be approved by the court and disclosed in the annual report.

We quote our fee after reviewing the facts. A hospital-initiated petition where the family consents is a different engagement from a three-sibling fight over a parent's co-op and brokerage accounts.

What Powers a Guardian Receives

The order and judgment grants only the powers the AIP needs. MHL § 81.21 lists property management powers, including marshaling assets, paying bills, retaining or hiring professionals, applying for Medicaid and other benefits, making gifts and transfers for Medicaid planning when the court authorizes them, creating trusts, defending and bringing lawsuits, and recovering property under § 81.43. Selling the incapacitated person's home generally requires a further court order even when the guardian holds general property powers.

MHL § 81.22 lists personal needs powers, including choosing the place of residence, consenting to or refusing medical treatment, accessing confidential records, and arranging services. A guardian cannot move the person to a nursing home over objection unless the order specifically authorizes it, and the court will want to know why a less restrictive setting will not work.

The incapacitated person keeps every right not expressly transferred (MHL § 81.29(a)). A guardianship over property alone leaves the person free to marry, vote, and make medical decisions.

Contested Guardianships

Three kinds of contest arise most often in New York courts.

• The AIP objects. The AIP denies incapacity, demands counsel, and may demand a jury. The petitioner then needs medical testimony and documented incidents, not family impressions. The court evaluator's report usually decides these cases.
• Family members compete to be guardian. Everyone agrees a guardian is needed; nobody agrees on who. Cross-petitions are filed. MHL § 81.19 requires the court to consider the AIP's stated preference, any prior nomination in a power of attorney or health care proxy, family relationships, and conflicts of interest. When siblings cannot work together the judge frequently appoints an independent Part 36 guardian, which satisfies no one and costs the estate.
• An existing agent is accused of misconduct. One child holds a power of attorney and the others allege self-dealing. The court can revoke or modify the power of attorney under MHL § 81.29(d) if it finds the document was signed while the person lacked capacity or that the agent breached fiduciary duty, and can order the agent to account and return funds. See our page on breach of fiduciary duty claims in New York.

Situations That Commonly Bring Families to Our Office

The following describe categories of matters we handle in New York guardianship courts. Details are generalized and no outcome is implied; every case turns on its own facts.

• Parent with dementia, no planning documents: An adult child in Brooklyn or Queens needs authority to pay the mortgage, apply for community Medicaid, and sign a home care contract. We petition for property management powers with Medicaid planning authority and, where appropriate, ask the court to dispense with a bond by restraining the accounts.
• Suspected exploitation by an agent or caregiver: Siblings discover large withdrawals and a new deed. We seek a temporary guardian and an injunction under MHL § 81.23 to freeze the accounts, then pursue a § 81.43 turnover proceeding and ask the court to revoke the power of attorney under § 81.29(d).
• Hospital discharge or surgery with no health care proxy: A hospital in Manhattan or Nassau County cannot discharge a patient to rehabilitation and the family has no authority to sign the admission agreement or Medicaid application. We first determine whether the Family Health Care Decisions Act already covers the medical decision; if financial authority is also needed, we file for a limited guardianship with expedited relief.
• Heir in a pending estate who appears to lack capacity: An estate cannot be distributed because a beneficiary cannot manage funds. We ask the Surrogate to appoint a guardian or to direct payment into a supplemental needs trust.

Ending or Changing a Guardianship

• Modification: Any party, including the incapacitated person, may move to expand or reduce the guardian's powers as circumstances change (MHL § 81.36).
• Discharge: If the person regains capacity, after a stroke recovery for example, the court holds a hearing and discharges the guardian under MHL § 81.36.
• Removal: A guardian who fails to file reports, mismanages funds, or neglects the person may be removed under MHL § 81.35 and a successor appointed.
• Death of the incapacitated person: The guardian's authority ends. The guardian must notify the court and file a final report and account within 150 days (MHL § 81.44). Remaining assets pass to the estate, which is then handled through probate or administration in Surrogate's Court. Our NYC probate timeline explains what follows.

Frequently Asked Questions

Can I get emergency guardianship in New York?

Yes. MHL § 81.23(a) allows the court to appoint a temporary guardian at the time the order to show cause is signed, before the hearing, on a showing of danger to the person's health or property in the reasonably foreseeable future. The court can also freeze accounts or bar a specific person from contact or from transferring assets.

Who pays for an Article 81 proceeding?

If the court grants the petition, fees for the court evaluator, appointed counsel, the bond, and usually the petitioner's attorney are paid from the incapacitated person's assets with court approval. If the petition is denied, the petitioner pays their own attorney and may be ordered to pay the court appointees.

Can the alleged incapacitated person contest?

Yes. The AIP is entitled to appear, to counsel, to present and cross-examine witnesses, and to a jury trial on request (MHL § 81.11). The petitioner must prove incapacity by clear and convincing evidence.

Does guardianship end a power of attorney or health care proxy?

Not automatically. Under MHL § 81.29(d) a prior power of attorney or health care proxy stays in effect unless the court specifically revokes or modifies it, which the court may do if the document was signed while the person was incapacitated or the agent breached a fiduciary duty. Ask for that relief in the petition if you need it.

Does the person have to come to court?

The AIP has the right to be present and generally should be. If the person cannot travel, the judge conducts the hearing at the hospital, nursing home, or residence. The court may excuse attendance only on a finding that the person is completely unable to participate or that attendance would cause harm (MHL § 81.11(c)).

Can a guardian be paid?

Yes, with court approval under MHL § 81.28. Courts often look to the executor commission schedule in SCPA § 2307 for property guardians. Compensation must appear in the annual report.

Can I file in New York if my parent lives in another state?

Only if the parent resides in New York or is physically present here (MHL § 81.04). If the parent lives elsewhere, you file in that state. A guardian appointed in another state can seek recognition here under MHL § 81.18.

How is Article 81 different from Article 17-A?

Article 81 applies to any adult with functional limitations and grants only the powers needed, in Supreme Court. Article 17-A applies to adults with intellectual or developmental disabilities, is filed in Surrogate's Court on physician certifications, and traditionally grants full authority. See the comparison above.

How long does the guardianship last?

Until the court modifies or discharges it or the person dies. The order and judgment must state the duration (MHL § 81.15). A guardianship for a temporary condition can be limited to a set period.

Talk to a New York Guardianship Attorney

The Law Offices of Albert Goodwin files and defends Article 81 and Article 17-A petitions in the Supreme and Surrogate's Courts of Manhattan, Brooklyn, Queens, the Bronx, Staten Island, Nassau, Suffolk, and Westchester. We handle uncontested family petitions, emergency temporary guardianships, contested cases between relatives, petitions to remove or replace a guardian, and the annual reports and accountings that follow. If you are deciding between guardianship and a less restrictive alternative, we can review the documents your family already has and tell you what the court is likely to require.

Call 212-233-1233 or email [email protected]. Delay in a guardianship matter can cost the incapacitated person money and options, so contact us as soon as the problem becomes clear. Read more about Albert Goodwin and our Brooklyn estate practice.