How to Get Guardianship of an Adult in New York: Article 81 and Article 17-A

An adult may lose the ability to manage money or personal care because of dementia, a stroke, a brain injury or serious mental illness. Another adult may have an intellectual or developmental disability that has been present since childhood. In either case, family members often need legal authority to act. New York has two separate guardianship statutes for adults. Article 81 of the Mental Hygiene Law (MHL §§ 81.01–81.44) is heard in the Supreme Court. Article 17-A of the Surrogate's Court Procedure Act (SCPA §§ 1750–1761) is heard in the Surrogate's Court.

This guide covers the steps to get guardianship of an adult under either statute. It explains how to choose between them, what the court must find, who gets notice and when, what the process costs, how long it takes, what happens when someone objects, and what a guardian must do after appointment. If you want to talk about representation, see our New York guardianship attorneys page. For a shorter introduction to guardianship terms, see how guardianship works.

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

Families often file under the wrong statute, and that costs them time. The choice depends mainly on the cause and onset of the person's limitations.

• Who it covers: Article 81 applies to any adult whose functional limitations make them likely to suffer harm. It is the usual route for an older parent with dementia or an adult disabled by illness or injury. Article 17-A applies to a person with an intellectual disability, or a developmental disability such as cerebral palsy, autism or epilepsy that began before age 22 (SCPA §§ 1750, 1750-a).
• Which court: Article 81 cases are heard in the Supreme Court of the county where the person lives or is physically present (MHL §§ 81.04, 81.05). Outside New York City, the County Court also has jurisdiction. Article 17-A cases are heard in the Surrogate's Court.
• What must be proven: Article 81 requires clear and convincing evidence of incapacity and of the need for a guardian (MHL § 81.02(b)). Article 17-A relies on certifications from two physicians, or from one physician and one licensed psychologist, together with a finding that guardianship is in the person's best interest.
• Scope of powers: Article 81 orders must be tailored. The court grants only the powers the person needs. Article 17-A guardianships have traditionally been plenary. Several Surrogate's Court decisions now require courts to consider less restrictive options before granting full authority.
• Court evaluator and hearing: Every Article 81 case has a court evaluator or appointed counsel and a hearing. In an Article 17-A case, the court may dispense with a hearing when the petitioners are the parents or when the parents consent (SCPA § 1754).
• Cost and speed: Article 17-A is usually simpler and less expensive. Many parents file it when a child with a developmental disability turns 18. Article 17-A also lets parents name a standby guardian to take over when they die or can no longer serve.

If an adult with a lifelong developmental disability also has significant property, or if family members disagree, Article 81 may still be the better fit because its orders can be shaped to specific needs. Most of this guide covers Article 81, since it handles the widest range of adult cases.

What an Article 81 Court Must Find

Under MHL § 81.02, a judge may appoint a guardian only after finding two things:

• Necessity: A guardian is needed to provide for the person's personal needs, property management, or both.
• Agreement or incapacity: The person agrees to the appointment, or the person is incapacitated. Incapacity means the person is likely to suffer harm because they cannot provide for their property or personal needs and cannot adequately understand and appreciate the nature and consequences of that inability.

The adult in the case is called the alleged incapacitated person, or AIP. The AIP is presumed to have capacity until the court rules otherwise.

Functional limitations, not diagnoses

A diagnosis of dementia does not by itself justify a guardian. Under MHL § 81.02(c), the court looks at what the person can and cannot do. That includes the ability to handle activities of daily living such as eating, bathing, dressing and taking medication, the ability to pay bills and protect assets, the person's understanding of their own limitations, and the person's wishes, preferences and values.

Petitions that succeed describe specific events with dates. Examples include an eviction notice ignored because rent went unpaid, a wire transfer to a phone scammer, a missed insulin dose that led to a hospital stay, or withdrawals by an agent that the AIP cannot explain. A general statement that a parent "is getting confused" is not enough.

Less Restrictive Alternatives

A guardian is not "necessary" if the person's needs can be met another way. MHL § 81.03(e) lists available resources the court must consider. These include home health aides, adult day programs, powers of attorney, health care proxies, trusts, and representative or protective payees. If those tools already exist and are working, the court may deny the petition or grant only narrow powers to fill a gap.

• Power of attorney: A durable financial power of attorney signed while the person had capacity. If an agent is misusing one, see what to do when a power of attorney is being abused.
• Health care proxy and living will: These cover medical decisions. See our advance directive page.
• Supported decision-making agreements: New York enacted MHL Article 82 in 2022. It lets an adult with a disability sign an agreement naming supporters who help them understand information and make their own decisions. The adult keeps legal authority.
• Single-transaction orders: Under MHL § 81.16(b), the court can approve one specific transaction, such as signing a Medicaid application or selling a co-op, without appointing an ongoing guardian.
• Trusts and representative payees: A special needs trust or a Social Security representative payee can handle income without court supervision.

Each of these, except a single-transaction order, must be put in place while the person still has the capacity to sign. Once capacity is gone, a court proceeding is usually the only option left.

Who Can File an Article 81 Petition

MHL § 81.06 allows any of the following to petition:

• The AIP;
• A presumptive distributee, meaning someone who would inherit from the AIP if there were no will;
• An executor, administrator or trustee of an estate or trust in which the AIP is a beneficiary;
• A person the AIP lives with;
• The chief executive officer of a facility where the AIP is a patient or resident;
• Any other person concerned with the AIP's welfare, including a public agency such as Adult Protective Services.

The petitioner does not have to be the person who serves as guardian. Under MHL § 81.19, the court chooses a guardian suited to the AIP. It gives weight to the AIP's own preferences and to family relationships. When no suitable family member is available, the court appoints a guardian from the list kept under Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36).

Powers a Guardian May Receive

• Personal needs (MHL § 81.22): Choosing where the person lives, consenting to or refusing medical treatment, arranging home care or placement, and managing social and recreational needs. A guardian cannot place the person in a mental hygiene facility for treatment, or consent to certain procedures, without the specific safeguards the statute requires.
• Property management (MHL § 81.21): Collecting and managing assets, paying bills, filing tax returns, applying for Medicaid and other benefits, and bringing or defending lawsuits. Major transactions such as selling a home, making gifts or creating trusts usually require separate court approval.

One person can hold both sets of powers. Under MHL § 81.29, the person keeps every right not specifically given to the guardian. A property order might leave the person a monthly allowance to manage while the guardian handles the brokerage account and the real property. A guardian ad litem is a different role. A guardian ad litem protects a party's interests within one lawsuit and has no ongoing authority over the person's life.

The Article 81 Process, Step by Step

1. Petition and order to show cause

The case begins with a verified petition. MHL § 81.08 requires it to describe the AIP's functional limitations, each power requested and why it is needed, the AIP's property and income, the alternatives that were considered, and the proposed guardian's relationship and qualifications. Supporting affidavits from family members, and medical records where available, accompany the petition. If the papers are sufficient, the judge signs an order to show cause that sets the hearing date and appoints a court evaluator or counsel.

2. Notice

Under MHL § 81.07, the order to show cause and petition must be personally served on the AIP at least 14 days before the hearing. The AIP must also receive a plain-language explanation of the proceeding and their rights. Notice must also go to the AIP's spouse, parents, adult children and siblings, the person the AIP lives with, any agent under a power of attorney or health care proxy, and the court evaluator. If the AIP lives in a facility, notice goes to Mental Hygiene Legal Service (MHLS) and the facility's chief executive officer. If the AIP receives public assistance, notice goes to the local social services district.

3. Court evaluator and counsel

The court evaluator (MHL § 81.09) is an independent attorney or other qualified person, and in New York City is often MHLS. The evaluator meets the AIP, explains the case to them, interviews family and caregivers, may seek access to medical records with court permission, and files a written report and recommendation. The court must appoint counsel for the AIP if the AIP requests it, opposes the petition, or in the other circumstances MHL § 81.10 lists, such as a request to move the AIP to a nursing home. The judge considers the evaluator's report but is not bound by it.

4. The hearing

MHL § 81.11(b) requires the hearing to be held within 28 days after the order to show cause is signed. The court can adjourn it for good cause. The AIP has the right to be present, to testify, to call witnesses, to cross-examine and to demand a jury. If the AIP cannot travel, the hearing may be held where the AIP lives, such as at home or in a hospital. Judges usually question the AIP directly.

5. Order, oath and commission

If the petition is granted, the order lists each power the guardian holds and the duration of the appointment. The guardian then files an oath and designation (MHL § 81.26), posts any bond the court requires (MHL § 81.25), and receives a commission (MHL § 81.27). Banks, landlords and hospitals will ask to see the commission before they deal with the guardian.

Emergencies: Temporary Guardians

If waiting several weeks would put the AIP or their assets at risk, the court can appoint a temporary guardian when the order to show cause is signed (MHL § 81.23(a)). Common reasons include a pending eviction, a scam that is draining accounts, or a hospital discharge with no safe place to go. The temporary guardian's powers are limited to the emergency. The court can also issue a temporary restraining order to freeze accounts or stop the transfer of a home.

Contested Guardianships

A case becomes contested when someone files an objection. That might be the AIP, a sibling, or an agent whose authority is challenged. Contested cases follow the same steps but take longer and cost more. Common disputes include:

• The AIP objects: Counsel will be appointed, and the AIP may demand a jury. A petitioner must prove incapacity with evidence, not family concern.
• Medical evidence: Courts vary on whether they will order an examination over the AIP's objection. Petitions usually rely on existing treatment records, statements from treating physicians, and testimony from people who see the AIP regularly.
• Disagreement over who serves: Siblings often agree that a guardian is needed but not on who it should be. The court may appoint an independent Part 36 guardian instead of any family member.
• An agent who misused a power of attorney: Under MHL § 81.29(d), the court may modify or revoke a power of attorney or health care proxy if it finds the agent acted improperly or that the document was signed after capacity was lost. A guardian may then bring a turnover proceeding under MHL § 81.43 to recover money or property. Related claims are covered on our breach of fiduciary duty page.
• Recent transfers or a new will: A deed or will signed shortly before the petition may raise undue influence questions. Guardianship does not set aside a will, but evidence gathered in the guardianship can matter later in probate.

How Long It Takes

• Uncontested Article 81: In New York City, expect about two to four months from filing to commission. That includes preparing the petition, the 28-day hearing window, the evaluator's report, the written order, the bond and the oath.
• Contested Article 81: Six months to a year is common. Cases with a jury demand, appeals or turnover litigation can take longer.
• Temporary guardian: Can be appointed within days of filing in an emergency.
• Article 17-A: Often faster than Article 81 when parents petition together and the court dispenses with a hearing. Timing depends on the Surrogate's Court calendar.

Delays usually come from incomplete medical documentation, difficulty serving the AIP, or a guardian who is slow to obtain the bond after the order is signed.

What Article 81 Guardianship Costs

The figures below are general estimates for New York City. They are not a quote, and the court sets or approves most fees.

• Court fees: An index number ($210) and a request for judicial intervention ($95) under the current Supreme Court fee schedule, plus service costs.
• Petitioner's attorney: Uncontested cases commonly fall in the range of roughly $7,500 to $20,000. Contested cases can cost several times that. If the petition is granted, the court may direct that reasonable petitioner's counsel fees be paid from the AIP's funds (MHL § 81.16(f)).
• Court evaluator: Set by the court and usually paid from the AIP's assets. If the petition is dismissed, the court may shift the fee to the petitioner. MHLS does not charge when it serves, although the court can award it fees when the AIP has resources.
• Counsel for the AIP: Paid from the AIP's funds if they have the means.
• Bond: Usually required for property powers. The annual premium depends on the size of the estate. The court may reduce or waive the bond when funds are held in restricted accounts that need a court order for withdrawal.
• Guardian compensation: Under MHL § 81.28, a property guardian may receive commissions on the same schedule used for executors under SCPA § 2307. Family guardians often waive them.
• Ongoing costs: Court examiner fees for reviewing annual reports, and accountant fees in larger estates.

If the AIP has few assets, fees are lower and some roles are filled by MHLS or by attorneys who serve on a reduced fee basis. If no one can pay, ask about this early, because it affects who should file.

After Appointment: The Guardian's Duties

• Training: Complete a court-approved guardian training program under MHL § 81.39, unless the court waives it.
• Initial report: File within 90 days after the commission issues (MHL § 81.30). For property guardians, it includes a full inventory of assets.
• Annual report: File each May (MHL § 81.31). It covers the person's living situation, medical condition and social contacts, and accounts for every dollar received and spent.
• Court examiner review: A court examiner reviews each report (MHL § 81.32). In Manhattan and the Bronx, examiners are appointed under the Appellate Division, First Department. In Brooklyn, Queens and Staten Island, they are appointed under the Second Department.
• Keeping funds separate: Never mix the person's money with your own. Many orders require court approval before money is withdrawn from guardianship accounts.
• When the person dies: The guardianship ends. Under MHL § 81.44, the guardian must serve notice of the death on the court examiner and the estate's representative within 20 days, file a final report, and turn the property over to the executor or administrator. See our page on estate administration.

A guardian who fails to report or misuses funds can be removed and surcharged, meaning ordered to repay the losses personally (MHL § 81.35). A guardianship can be modified or ended under MHL § 81.36 if the person regains capacity or circumstances change.

Filing in New York City and the Suburbs

Article 81 petitions in New York City are filed in the Supreme Court for the borough where the AIP lives: New York County (Manhattan), Kings County (Brooklyn), Queens County, Bronx County or Richmond County (Staten Island). If the AIP is in a hospital or nursing home in another county, the case may be filed where they are physically present. In each borough, guardianship cases go to justices assigned to handle them. Those parts differ in how they schedule hearings, which evaluators they appoint, and what they expect in proposed orders.

In Nassau, Suffolk and Westchester, petitions are filed in the Supreme Court for that county. Article 17-A petitions go to the Surrogate's Court of the county where the person lives. Our practice includes Surrogate's Court matters in Manhattan and Brooklyn.

Illustrative Scenarios

The scenarios below are hypothetical. They show how the rules apply and do not describe actual clients or results.

• Dementia and a scam: A widowed father in Queens with moderate Alzheimer's has wired savings to someone he met online. He never signed a power of attorney. His daughter petitions under Article 81 for property powers only and asks for a temporary guardian to freeze accounts. He still manages his own daily routine, so personal needs powers may not be needed.
• An agent in the way: A mother in Brooklyn signed a power of attorney naming her son, who has since withdrawn large sums. A daughter petitions, asks the court to revoke the power of attorney under § 81.29(d), and seeks a turnover order under § 81.43. The case is likely to be contested.
• Turning 18: Parents of a young man with autism in Manhattan want authority over medical and educational decisions. Article 17-A in Surrogate's Court, with the parents as co-guardians and a sibling as standby guardian, is usually the simpler route. A supported decision-making agreement under Article 82 may be worth considering first if he can take part in decisions with help.

Before You File: Documents to Gather

• A list of the person's diagnoses, doctors and medications, plus recent medical records or a letter from a treating physician
• Dated notes of specific incidents, such as missed bills, falls, scams or hospital stays
• Copies of any power of attorney, health care proxy, living will, trust or will
• Bank, brokerage and retirement statements, deeds, and income sources such as Social Security and pensions
• Names and addresses of the spouse, parents, adult children and siblings, and of anyone the person lives with
• Information on current care arrangements and any pending Medicaid application
• The proposed guardian's background, including any history that could affect eligibility or bonding

Frequently Asked Questions

Do I need a lawyer to file for guardianship in New York?

The law does not require one. Article 81 petitions must meet detailed pleading requirements under MHL § 81.08, and errors lead to rejected papers or adjournments. Most petitioners hire counsel. Some parents filing Article 17-A petitions use Surrogate's Court forms and help centers on their own.

My parent has dementia but signed a power of attorney years ago. Do I still need guardianship?

Often not, as long as the agent is acting properly and the document covers what is needed. Guardianship may still be needed if the agent is misusing it, if decisions fall outside the document, or if no health care proxy exists and medical decisions are in dispute.

Can a guardian sell the person's home or change their will?

A property guardian can sell real estate with court approval. A guardian cannot make a will for the person. Gifts, trusts and other estate planning on the person's behalf require a separate application under MHL § 81.21.

Can the person refuse a guardian?

The person can oppose the petition, have counsel, and demand a jury. If the court finds incapacity by clear and convincing evidence, it can appoint a guardian over the person's objection. The person's wishes still shape which powers are granted and who serves.

Can the guardian move the person into a nursing home?

Only if the order grants that power. Placement in a nursing home or other residential facility is restricted under MHL § 81.22. The court must consider whether the person can safely remain at home with services.

Is Article 17-A guardianship permanent?

It continues until the court modifies or ends it. A guardian or the person can petition the Surrogate's Court to change or end it, for example if the person can now make decisions with support.

Primary Sources

• Mental Hygiene Law Article 81
• Mental Hygiene Law Article 82 (supported decision-making)
• Surrogate's Court Procedure Act Article 17-A

Related Topics

• Health care proxies and living wills in New York
• Stopping an agent who is abusing a power of attorney
• Special needs trusts for adults with disabilities
• Claims against a guardian or agent for breach of fiduciary duty
• Estate administration after a ward dies

Talk With a New York Guardianship Lawyer

Guardianship asks a court to take legal control of another adult's decisions and money. A well-prepared petition protects a vulnerable person. A poorly prepared one gets delayed, narrowed or dismissed. We help families decide whether guardianship is needed, choose between Article 81 and Article 17-A, prepare petitions, respond to objections, and handle the reports a guardian must file after appointment.

The Law Offices of Albert Goodwin, in Midtown Manhattan, handles guardianship, estate and trust matters in New York City, Long Island and Westchester. Call 212-233-1233 or email [email protected].

Reviewed by Albert Goodwin, Esq., Law Offices of Albert Goodwin. This article is general information, not legal advice, and reading it does not create an attorney-client relationship. New York statutes, court rules and fee schedules change. Consult a licensed New York attorney about your situation.