Guardianship Attorneys in New York City

When a Guardianship Is Needed, and When It Is Not

Most families never need one. A parent who signed a durable power of attorney and a health care proxy while competent has already chosen who will act. A guardianship becomes necessary when there are no such documents and the person can no longer sign them; when the agent is misusing the authority or refuses to act; when the person is refusing care or being exploited; or when the decisions needed go beyond what an agent can do. See power of attorney vs. guardianship, durable powers of attorney and health care proxies.

Where the problem is the agent rather than the absence of one, the guardianship court can deal with it directly. Under MHL § 81.29 the court that appoints a guardian may modify or revoke a power of attorney, health care proxy or other delegation the person signed, and any lifetime transfer they made, if it was made while the person was incapacitated or the agent has breached their fiduciary duty, and it must then require the agent to account to the guardian. What the court cannot do is revoke the person’s will during their lifetime. See taking away a power of attorney.

A guardianship is not the answer to a diagnosis; the question is always what the person can and cannot do, and what will happen if no one is appointed. Nor is it a tool for winning a family argument about money or the will, and a petition brought for that purpose can end with the petitioner paying for it.

How an Article 81 Proceeding Works

The proceeding is built to move quickly and to give the alleged incapacitated person every chance to be heard. See also how a guardianship proceeding works.

1. 1

   The petition

   A family member, a friend, a hospital or nursing home, or an agency files a petition in the Supreme Court of the county where the person lives, describing the person’s functional limitations, the harm that is likely, the powers sought and who should be appointed. It is brought on by order to show cause. Under MHL § 81.07 the court sets the hearing no more than twenty-eight days from signing the order, and adjourns it only for good cause.

2. 2

   The court evaluator and counsel

   When it signs the order to show cause the court appoints a court evaluator under MHL § 81.09: a lawyer, physician, psychologist, social worker or similar professional who meets the person and explains the proceeding, interviews the petitioner, may be given access to the medical records, and reports in writing on whether a guardian is needed, whether a power of attorney or other resources would suffice, what the least restrictive powers would be, whether the proposed guardian is suitable, and what conflicts exist.

   The person may retain a lawyer of their choice, and under MHL § 81.10 the court must appoint one if the person asks, wishes to contest, does not consent to being moved to a nursing home or to major medical treatment, or if a temporary guardian is sought. Where there is foreseeable danger to the person’s health or of waste or misappropriation of their property, the court may under MHL § 81.23 appoint a temporary guardian with enumerated powers until a permanent guardian is commissioned, and may restrain anyone else from transferring or receiving the person’s property, with a restraining notice to banks and subpoena power for the petitioner’s lawyer.

3. 3

   Service and notice

   The order to show cause and petition are delivered to the person personally at least fourteen days before the hearing. The order is written in large type and plain language and carries a legend telling the person what is being asked, that they are entitled to be present and to a lawyer, and that they may demand a jury trial. Notice is mailed, also fourteen days ahead, to the spouse, parents, adult children and adult siblings, the people the person lives with, any agent under a power of attorney or health care proxy, and the facility if the person is in one. Any of them may appear and be heard.

4. 4

   The hearing

   Under MHL § 81.11 the hearing must be conducted in the presence of the person, at the courthouse or, if they cannot be brought there, where they live, so that the judge forms their own impression; it proceeds without them only if they are out of the state or the record clearly establishes that they cannot participate at all. Every party may present evidence, call witnesses including experts, and cross-examine. If the person or their lawyer raises a factual dispute about the need for a guardian and demands a jury on or before the return date, the issue is tried to a jury; failure to demand it is a waiver.

   Unless the person agrees to the appointment, the petitioner must prove by clear and convincing evidence that the person is likely to suffer harm because they are unable to provide for their personal needs or manage their property and cannot adequately understand and appreciate the nature and consequences of that inability. The court gives primary consideration to the person’s functional level: how they manage the activities of daily living, their understanding of any inability, their own preferences and values, and the extent of their property.

5. 5

   The order and commission

   If the person is found not to be incapacitated, the petition is dismissed. If a guardian is needed, the order under MHL § 81.16 names the guardian and lists the specific powers granted, limited to those the court found necessary, and identifies who is entitled to notice of later proceedings.

   Under MHL § 81.19 any suitable adult, or a qualified not-for-profit or agency, may serve; the court must appoint the person’s own nominee unless unfit, and otherwise weighs the agents already named under a power of attorney or proxy, the relationships, the powers to be exercised, experience and conflicts. A creditor or a non-relative care provider cannot serve unless no one else is available, and proposed guardians are checked against criminal and abuse registries.

   The appointment takes away only the rights the order gives the guardian: under MHL § 81.29 the person retains every other power and right, title to the property stays in the person’s name, and the appointment is not conclusive of incapacity for any other purpose, including the capacity to make a will. The court can also, without appointing a guardian, authorize a single transaction or protective arrangement, such as a trust or a care contract. The judgment is served on the person and explained to them within ten days. The guardian completes the required training, files a designation and any bond required, and receives a commission, the document that proves the guardian’s authority to banks, doctors and agencies.

6. 6

   Reports and supervision

   The guardian files an initial report within ninety days of the commission (MHL § 81.30) and an annual report each May (MHL § 81.31), both reviewed by a court examiner, and a final account when the guardianship ends. The guardianship can be modified or ended on application if the person’s condition changes.

An uncontested proceeding, where the family agrees and the medical picture is clear, typically runs from filing to commission in a few months. A contested proceeding, with a disputed capacity question or a fight over who should serve, takes longer and may involve depositions and expert testimony.

Opposing a Guardianship

The person served can contest the petition, and so can a family member who believes it is unnecessary, overbroad or brought by the wrong person. See how to fight a guardianship.

• No functional incapacity

  Capacity is judged by what the person can do, not by a diagnosis or an age. A person who pays their bills, knows their assets and manages with help they have chosen is not incapacitated.

• No likely harm

  Eccentric choices, an untidy apartment or spending the family’s expected inheritance are not harm.

• A less restrictive alternative

  The court must consider whether available resources, a power of attorney, a health care proxy, a supported decision-making agreement, family help already in place, are sufficient and reliable without a guardian. If they are, the petition should be dismissed; if a guardian is needed at all, the powers are limited to the actual need.

• The wrong guardian

  The person’s own nomination controls unless the nominee is unfit. A petitioner with a conflict, a history of taking the person’s money, or a dispute with the rest of the family may be passed over for another relative or an independent guardian.

Many contested petitions end in a limited guardianship, or in the person executing advance directives under the court’s supervision, rather than a full appointment.

What a Guardian Must Do After Appointment

Unlike an executor or a trustee, who accounts only when asked, a guardian reports to the court whether or not anyone asks. The statutory detail, including the full list of property powers, the transfer petition, and the timetable on the person’s death, is on our page on a guardian’s responsibilities.

• The initial report

  , due within ninety days of the commission under MHL § 81.30, contains a verified inventory of the property under the guardian’s control, the location of any will, the plan for managing the property and for the person’s medical, social and personal needs, proof that the guardian completed the education requirement, and any change in powers the guardian thinks is needed.

• The annual report

  , filed each May under MHL § 81.31, states where the person lives, changes in their condition and medication, when a physician last saw them, a statement from a professional who evaluated them within the last three months, the plan for the coming year, and, for a property guardian, an accounting in the form the SCPA prescribes. A court examiner reviews it, may ask for records, and reports to the court; a missing or deficient report leads to an order to compel and can lead to removal.

• The general duties

  under MHL § 81.20: exercise only the powers in the order; act with the utmost care, loyalty and fidelity; visit the person at least four times a year; allow them the greatest independence their condition permits; and preserve, protect and account for the property.

• Separate accounts, kept in the person’s name

  with the guardian as fiduciary. Commingling is the fastest way for a guardian to end up surcharged.

• Property powers

  under MHL § 81.21, granted only as the order provides. Any transfer of the person’s assets to someone else, including gifts and Medicaid planning, requires a petition on notice to the person’s distributees and will beneficiaries, and the court grants it only on clear and convincing evidence that the person cannot act (or consents), that a reasonable person in their position would make the transfer, and that it is consistent with what they intended while competent. A guardian may never make or change the person’s will.

• Compensation

  is fixed by the court under MHL § 81.28, which sets a plan for reasonable compensation based on the powers granted and the services rendered, and may deny or reduce it where the guardian has not discharged their duties satisfactorily. A guardian who pays themselves outside the plan is at risk. See whether a guardian is paid.

• On the person’s death

  , MHL § 81.44 requires a statement of death within twenty days and, within one hundred fifty days, delivery of the property to the estate’s personal representative and the filing of the final report for judicial settlement. A guardian who misses those deadlines can be compelled to account and removed.

The reports and the final account use the same discipline as an estate accounting: every receipt and disbursement, reconciled to the bank, with the records behind them. We prepare them for guardians and review them for family members who question them. See trust and estate accountings and Article 81 property guardianship.

What It Costs and Who Pays

An Article 81 proceeding has three sets of fees: the petitioner’s lawyer, the court evaluator, and the lawyer for the alleged incapacitated person. When the petition is granted, the court may award the petitioner’s attorney reasonable compensation from the person’s estate (MHL § 81.16), and the court evaluator is paid from the estate as well (MHL § 81.09). The person’s own appointed counsel is paid by the person unless indigent (MHL § 81.10). When the petition is dismissed, the court may direct the petitioner to pay the court evaluator and the person’s counsel, which is a real risk for a petition brought without a good basis. Guardians are paid from the property under the plan the court sets.

We handle uncontested guardianships for a flat fee, quoted after we understand the situation. Contested proceedings are billed at $600 per hour. Guardian reports and accounts are prepared for a flat fee that depends on the size of the estate and the state of the records.

Pitfalls

Before the petition, the two common mistakes are waiting too long and asking for too much. A parent who is still able to sign a power of attorney and a health care proxy can avoid the proceeding altogether, and once that window closes guardianship is the only route. A petition that seeks every power in the statute for a person who needs help with two things invites a contest and a court evaluator’s recommendation against it.

After appointment, the first failure is usually the ninety-day report, which new guardians miss and court examiners notice. The second is money: running the person’s bills through the guardian’s own account, or taking compensation or reimbursement without an order, turns every later report into a reconstruction and every reconstruction into an objection.

Talk to Us

If a relative can no longer manage and no one has authority to act, if you have been served with a guardianship petition, or if you are a guardian facing a report or an account, call 212-233-1233 or email [email protected]. We appear in the Supreme Court in New York, Kings, Queens, Bronx and Richmond counties, and in Nassau, Suffolk and Westchester.