Practice Areas

Guardianship Proceedings

The appointment of a Guardian may be necessary if a person lacks capacity to make decisions necessary to provide for personal needs and/or property management. A Guardian should only be appointed if a less restrictive alternative is unavailable.

Since the appointment of a Guardian limits liberty and the privacy interests of an alleged incapacitated person (AlP), it is carefully supervised by the courts. A guardianship proceeding, under Article 81 of the Mental Hygiene Law, is commenced by Order to Show Cause and petition and usually is accompanied by a medical affidavit. A variety of persons interested in the welfare of an alleged incapacitated person can commence a proceeding.

A Guardian may be appointed under Mental Hygiene Law Article 81 if the AIP agrees or if the court determines that person is incapacitated as defined by statute. Clear and convincing evidence is required to establish that the person is likely to suffer harm as result of his inability to manage property or provide for his personal needs and lacks sufficient understanding or appreciation of nature and consequences of his inability.

In a guardianship proceeding, the court will usually appoint a court evaluator to investigate and report to the Court. The Court evaluator will interview the AIP, the petitioner and any other interested parties. The Court evaluator will also examine the AIP’s medical and financial records and review the AIP’s legal documents: Will, revocable trust, power of attorney and health proxy.

The Alleged Incapacitated Person has the right to be represented by legal counsel of choice. Under certain circumstances, the court will appoint counsel for him.
In appointing an appropriate Guardian, the Court considers a number of factors and will give considerable weight to any prior written nomination of a Guardian made by the AIP. The Guardian must obtain a bond if required by court. The Guardian has certain duties, powers and obligations, including a duty to account to the Court.

Article 81 incorporates the doctrine of substituted judgment and authorizes Guardians to make transfers of property to provide for a person’s dependents, establish or maintain eligibility for Medicaid, and minimize estate and gift tax liability. A Guardian does not have authority to make a will or codicil for an incapacitated person.

The Surrogate’s Court also has the power to appoint a Guardian. However, its power is more limited. The Surrogate’s power under Article 17 of the SCPA applies only to minors and its authority under 17-A is limited to persons with mental retardation or a developmental disability.

Please contact us for more information and to hear back from an experienced attorney.