How Guardianship Works in New York City

A guardianship is a legal arrangement in which a court gives one person the authority to make decisions for another person who cannot make responsible decisions for themselves. For an adult in New York that is done under Article 81 of the Mental Hygiene Law. Guardianship can be necessary, but it also takes away a person’s freedom to make their own life decisions, and for that reason people often disagree about whether it is right for the individual. This page walks through an Article 81 proceeding from the petition to the guardian’s yearly report. Whether you are the one filing, the one being filed against, or a relative caught in between, a New York City guardianship attorney can guide you through it.

Guardianship for an Incapacitated Adult

The court will appoint a guardian for an adult who can no longer take care of themselves. The common signs are an inability to get and prepare nutritious food, maintain personal hygiene, find safe housing, avoid unsafe situations or people, pay bills and manage finances, or consent to needed medical treatment or to discharge from a medical facility.

Not everyone needs a guardian. Every adult has the legal capacity to make their own decisions unless proven otherwise, and that is just as true of a senior. But many people are incapacitated and do need the help.

The Steps of the Guardianship Process

In simplified form, an Article 81 proceeding moves through these steps.

1. A petition is filed. Someone files a petition telling the court that a person has lost the capacity to take care of themselves. Sometimes the person’s relatives object to the petition.
2. Notice is given. Once the petition is filed the court sets a hearing date. The person in question, along with close family members, must be formally notified of the petition and the hearing.
3. A court evaluator is appointed. The judge appoints an evaluator to investigate and make a recommendation. The evaluator meets the individual, looks at their living conditions, assesses their understanding and capacity, and interviews the petitioner and any other interested parties.
4. A temporary guardian may be appointed. Where immediate action is needed to protect the person or their assets, the court can appoint a temporary guardian pending the outcome of the full hearing.
5. The court evaluator reports. When the investigation is done the evaluator submits a written report stating whether, in their view, the adult needs a guardian.
6. Hearings are held. Most hearings are focused on resolving the case by agreement of everyone involved. If that is not possible, the judge hears testimony and examines evidence on whether the adult can manage their financial and personal needs, hearing from the petitioner, the court evaluator and any other relevant party.
7. The judge decides. Based on the evidence, the judge decides whether a guardian is necessary and, if so, who it will be and on what terms.
8. The order and commission issue. If guardianship is approved, the court issues an order specifying the powers granted to the guardian, and a guardianship commission, the document that authorizes the guardian to act for the ward. The guardian may need to complete a training course, and may be required to post a bond, before the commission is issued.
9. The guardian reports every year. Guardians are supervised by the court, which may require annual reports or more frequent updates on the ward’s condition and the management of their affairs.

When the Case Is Contested

Disputes Over Incapacity

There are often disputes over whether an individual is truly incapacitated and in need of a guardian. Family members, or the allegedly incapacitated person themselves, may sincerely disagree about the person’s mental capacity and ability to make decisions. When that happens the case becomes contested litigation, with the parties arguing their positions to the court. There may be competing petitions, or objections filed to challenge the claims of incapacity.

In a contested case additional procedures come into play, and the judge resolves the dispute after hearing evidence and testimony on all sides. Working out the truth about a person’s capacity is hard when family members have conflicting views and interests. The question the judge has to answer is whose account fits the individual’s actual functional abilities, and a guardianship litigation attorney’s job is to gather the evidence of capacity or incapacity and present it effectively.

Objecting to a Guardianship

Because guardianship takes away an adult’s independence, there are cases where objecting is entirely justified. You can object on the ground that the evidence of incapacity is lacking or exaggerated, and challenge the physician affidavits and the investigator’s report. You can also argue for a less restrictive alternative, such as a supported decision-making arrangement, a power of attorney, or a limited guardianship. We cover the mechanics in how to fight a guardianship.

Disagreement Over Who Should Be Guardian

If more than one family member wants to be the guardian, the court will usually appoint a neutral third party instead. That avoids conflicts of interest and gives the incapacitated person an unbiased decision-maker focused on their well-being. The neutral guardian is a licensed professional, an attorney or a social worker, with training and experience in acting in the best interests of the individual.

Financial Exploitation

When an elderly or otherwise vulnerable adult is said to be the victim of financial exploitation or abuse, a guardianship can offer real protection if the claims are true. An independent, accountable guardian managing the finances removes the opportunity for further abuse and ensures the funds are handled properly. But not every allegation of abuse made in a guardianship petition is true, and the petitioner still has to prove the allegations under the proper evidentiary standards.

The Role of the Court Evaluator

The court appoints an independent evaluator to investigate the situation. The evaluator serves as the “eyes and ears” of the court. The evaluator interviews the allegedly incapacitated person to assess their mental capacity and ability to make decisions; speaks with family members, doctors, caregivers and anyone else involved; reviews medical records, financial documents and other evidence; considers whether a less restrictive alternative would do; notes any disputes or concerns among family members; and then recommends to the judge whether a guardian is necessary and who should be appointed.

All of that goes into a written report of findings and recommendations. The judge relies heavily on that report when deciding the petition, but both the petitioner and the allegedly incapacitated person have the right to disagree with it.

The Rules on Medical Testimony

Medical evidence is handled carefully in an Article 81 proceeding. The person’s own treating physicians and therapists are bound by the physician-patient privilege, so their testimony and records do not come in simply because the petitioner wants them; the privilege has to be waived, or the court has to order disclosure. Under MHL § 81.09 the court evaluator may apply for permission to inspect the person’s medical, psychological and psychiatric records, and the court may order them disclosed to the evaluator, and further to the parties, where they will help the evaluator’s report. The court’s focus in any event is on the person’s functional limitations, not on a diagnosis.

The court can, however, allow testimony from an independent medical expert who examines the individual. Even then, Article 81 guardianship turns on the person’s capacity to manage the activities of daily living, not on a medical diagnosis.

Alternatives to Guardianship

There are less restrictive options, such as a power of attorney, a trust or an advance directive, and a lawyer can advise whether one of them would work in your situation. An adult who executed a power of attorney while competent can have the agent make decisions for them even after they become incapacitated, which can mean no guardianship is needed at all. If the agent is taking advantage of the adult, though, the court can set the power of attorney aside.

Guardianship Hearings

There are usually several hearings in a guardianship case. At the first, the court makes sure the potential ward is safe, which often means appointing a temporary guardian for the time being; sometimes the temporary guardian, the court evaluator and the attorney for the alleged incapacitated person have all been appointed before the first hearing takes place. The judge sets the schedule, explores whether an agreement can be reached if the matter is contested, and decides whether the alleged incapacitated person needs to be present at that hearing or later ones.

At the later hearings the judge deals with whatever comes up: keeping the person safe, scheduling, and other issues. In most cases the parties eventually agree on whether to appoint a guardian, who it will be and how broad the guardianship should be. Where there is no agreement, or the case is complicated, the later hearings are conducted much like a trial, and the judge looks closely at the evidence and hears from everyone relevant before deciding whether a guardian is required and who it should be.

What Happens at a Contested Hearing

A contested hearing usually runs in this order.

1. The judge opens the hearing. The judge directs the flow of the hearing and can question witnesses or parties at any time.
2. The petitioner presents their case. The petitioner goes first, with testimony from any relevant witnesses and the submission of evidence. Even in an uncontested case the petitioner must demonstrate the need for a guardian: that the proposed ward is in fact incapable of managing their personal or financial affairs, or both, because of an incapacity. The evidence can include medical testimony, expert opinions and personal observations.
3. The objectant presents their case. If objections were filed, the objecting party presents its own witnesses and evidence.
4. The court evaluator testifies. The evaluator describes the investigation and the recommendations. This testimony matters because it gives the court an objective view of whether a guardianship is necessary and suitable.
5. The alleged incapacitated person’s attorney takes part throughout. That attorney can cross-examine witnesses and object to testimony or evidence at any point in the hearing.
6. The judge rules. After hearing the evidence and argument the judge deliberates and issues a decision. If a guardian is necessary, the judge also decides what kinds of decisions the guardian may make and what limits, if any, to place on those powers.
7. A guardian may be appointed. If the court appoints a guardian, its order sets out the guardian’s duties and powers. The court tailors the guardianship to the individual, imposing the least restriction needed to provide for their care and the management of their affairs.

The Judge’s Ruling and Order

After the evidence and testimony are in, the judge rules on whether a guardian should be appointed. If the judge finds clear and convincing evidence that the individual is incapacitated and in need of a guardian, the court issues a written order and judgment appointing one. The order specifies whether the guardianship covers personal needs, property management or both; any powers granted to the guardian and any limits on them; who is appointed as guardian and as successor guardian; and anything else the court finds appropriate.

The appointed guardian cannot act until the written order and the letters of guardianship are issued. The court keeps oversight of the guardianship afterwards and can later modify or revoke it as needed.

Guardian Duties and Ongoing Responsibilities

Taking on the role of guardian is a serious responsibility. In New York a guardian is given considerable control over the ward’s affairs, and with that control comes the duty to act in the ward’s best interest at all times. Where the guardian has to make a decision, the standard is what the ward would have chosen if able to make a competent decision, known as “substituted judgment,” or, if that cannot be known, what is in the ward’s best interest. The main responsibilities are these.

New York Guardianship FAQs

Who can file for guardianship?

A spouse, parent, adult child or close relative can file. A health care facility can also file.

Does the proposed guardian need to be a New York resident?

No. Under MHL § 81.19 any suitable adult may serve. The court checks a proposed guardian against criminal, sex offender, abuse and order-of-protection registries and weighs what it finds, but a record is a factor the court considers, not an automatic bar. A creditor of the person, or a non-relative who provides the person’s care or housing, may not serve unless no one else is available.

How long does the guardianship process take?

On average a little over a year, though it varies with the complexity of the case and whether anyone files objections. A temporary guardian can be appointed right away if needed.

Who pays the attorney fees?

Typically the petitioner pays the initial fees. They can later be reimbursed by the guardian from the incapacitated person’s assets.

Can a guardianship be terminated?

Yes. The court can modify or end the guardianship on application if the person regains capacity or no longer needs a guardian, and the guardianship ends on the person’s death, when MHL § 81.44 requires the guardian to file a final report and turn the property over to the estate.

Talk to Us

If you need a guardianship attorney in New York City, whether to bring a petition, to oppose one, or to work out whether a power of attorney would do instead, we at the Law Offices of Albert Goodwin can help. We are in Midtown Manhattan. Call 212-233-1233 or email [email protected] to discuss your situation.