How an Article 81 Guardianship Proceeding Works in New York

Article 81 of the New York Mental Hygiene Law governs guardianship for adults who can no longer manage their personal needs or their property. This page follows an Article 81 proceeding in order, from the petition through the guardian's annual report, and cites the controlling section of the statute at each stage. It is written for people thinking about filing, for the person named in a petition (the "alleged incapacitated person," or AIP), and for relatives trying to work out what will happen next. This page covers the process. If you need to oppose a petition, see how to fight a guardianship. If you need representation at any stage, see our New York guardianship attorney page.

Written by Albert Goodwin, Esq., Law Offices of Albert Goodwin, New York. Statutory references are to the Mental Hygiene Law (MHL) and the Rules of the Chief Judge, with links to the official text where available.

Which Court Hears a New York Guardianship Case

New York has two adult guardianship statutes, and they are filed in different courts. Article 81 of the Mental Hygiene Law covers adults whose capacity has declined because of illness, injury, dementia, stroke or similar causes. Under MHL § 81.04, Article 81 cases are heard in Supreme Court, and outside New York City they may also be heard in County Court. Article 17-A of the Surrogate's Court Procedure Act covers adults with intellectual or developmental disabilities and is filed in Surrogate's Court. A petition about a parent with Alzheimer's disease belongs in Supreme Court under Article 81; a petition about an adult child with a lifelong developmental disability usually belongs in Surrogate's Court under Article 17-A. Filing in the wrong court costs months.

Venue is set by MHL § 81.05. The case is brought in the county where the AIP resides or is physically present. For a Manhattan resident that is New York County Supreme Court at 60 Centre Street; for Brooklyn, Kings County Supreme Court; and similarly Queens, Bronx and Richmond County Supreme Court for the other boroughs. Nassau, Suffolk and Westchester each have their own Supreme Court. In each of these counties Article 81 matters are assigned to a guardianship part or to justices who regularly hear them, and each court has a guardianship or fiduciary clerk's office that tracks whether guardians file the reports the statute requires.

One more rule shapes who you will meet in the case. Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36) requires the court to pick court evaluators, appointed counsel, court examiners and non-family guardians from a list of people who have completed the required training and registered with the Office of Court Administration. Family members proposed as guardian are exempt from the list requirement. Part 36 also places limits and reporting requirements on appointee compensation.

The Legal Standard the Court Applies

The court may appoint a guardian only if two things are shown. Under MHL § 81.02(a), a guardian must be necessary to provide for the person's personal needs or property management, taking into account the court evaluator's report and the sufficiency of the person's "available resources," and the person must either agree to the appointment or be found incapacitated.

Incapacity has a specific definition in § 81.02(b). The person must be likely to suffer harm because he or she is unable to provide for personal needs or property management, and cannot adequately understand and appreciate the nature and consequences of that inability. Both prongs are required. A person who cannot pay bills but knows it and has arranged for help is not incapacitated under this test.

The analysis is functional, not medical. MHL § 81.03 defines "functional level" and "functional limitations" in terms of the person's ability to manage the activities of daily living, and § 81.02(c) directs the court to look at the person's management of those activities, their understanding and appreciation of their limitations, and their preferences, wishes and values. A diagnosis of dementia is evidence, but it is not a finding of incapacity.

Two more principles run through the whole statute. First, § 81.01 states the legislature's purpose: a guardianship that is the "least restrictive form of intervention" and is "tailored to the individual needs of that person." The court must consider whether something short of a plenary guardianship would do. Second, under MHL § 81.12(a), the finding of incapacity must rest on clear and convincing evidence. That is a higher burden than the preponderance standard used in most civil cases.

Step 1: Who Can File (MHL § 81.06)

MHL § 81.06 lists who may commence the proceeding:

• The person alleged to be incapacitated, who may petition for a guardian for himself or herself.
• A presumptive distributee, meaning someone who would inherit from the person under the intestacy statute (spouse, children, parents, siblings and so on).
• An executor or administrator of an estate in which the person has an interest, or a trustee of a trust in which the person has an interest.
• A person otherwise concerned with the welfare of the AIP. This covers friends, neighbors, social workers and Adult Protective Services.
• The chief executive officer, or a designee, of a hospital, nursing home or other facility where the person is a patient or resident.

Hospitals and nursing homes file a large share of the Article 81 petitions in New York City, often because a patient is medically ready for discharge and no one has authority to consent to a placement or to apply for Medicaid.

Step 2: What the Petition Must Contain (MHL § 81.08)

The petition is a verified document, and MHL § 81.08 prescribes its contents. Among other things it must state:

• The name, age and address of the AIP, and the name and address of the person with whom the AIP lives.
• A description of the AIP's functional level, including the ability to manage activities of daily living, behavior and understanding of their situation.
• Specific factual allegations about the AIP's limitations and the harm the AIP is likely to suffer. Conclusions such as "she is confused" are not enough; the petition should describe missed medications, unpaid rent, wandering, or specific transactions.
• The particular powers sought for the guardian and why each is necessary, and the proposed duration of the guardianship.
• The approximate value and description of the AIP's assets and income, and the nature of the AIP's financial situation.
• Whether the AIP has executed a power of attorney, health care proxy, living will or trust, and what happened under those documents.
• The names and addresses of the AIP's presumptive distributees, and of anyone else entitled to notice.
• The name and address of the proposed guardian, and whether the proposed guardian consents.

The petition is usually accompanied by an affirmation from a physician or other professional. That affirmation is not required by the statute and is not a substitute for proof at the hearing. The AIP's treating physicians are bound by the physician-patient privilege, so their records do not come in simply because the petitioner attaches them. Under § 81.09(d) the court evaluator may apply to the court for permission to inspect the AIP's medical, psychological and psychiatric records, and the court may order disclosure where it will aid the evaluator's report.

Step 3: The Order to Show Cause and the 28-Day Rule (MHL § 81.07)

An Article 81 proceeding is started by an order to show cause, not by a summons. The petitioner presents the petition and a proposed order to show cause to the court. When the judge signs it, the clock starts. Under MHL § 81.07(b), the hearing must be held within 28 days of the signing of the order to show cause unless the court extends the time for good cause.

The order to show cause itself is written for the AIP to read. Section 81.07 requires it to be in at least 12-point type and in plain language, and to state the date and place of the hearing, the relief the petitioner is asking for, the name of the proposed guardian, the AIP's right to be present and to have a lawyer, and the name of the court evaluator.

Service is strict. The order to show cause and petition must be personally delivered to the AIP at least 14 days before the hearing date. Notice must also go, by mail at least 14 days before the hearing, to the AIP's spouse, parents, adult children, adult siblings, the person with whom the AIP lives, any agent under a power of attorney or health care proxy, the facility where the AIP resides, and Mental Hygiene Legal Service if the AIP is in a facility, among others listed in § 81.07(g). Defective service is a common reason a first hearing date is adjourned.

Step 4: The Court Evaluator (MHL § 81.09)

In the same order to show cause, the court appoints a court evaluator under MHL § 81.09. The evaluator is chosen from the Part 36 list and may be an attorney, a social worker, a nurse or another professional, or may be Mental Hygiene Legal Service. The evaluator is independent and is often described as the court's eyes and ears.

Section 81.09(c) sets out the evaluator's duties. The evaluator must meet with the AIP, explain the proceeding in a way the AIP can understand, and tell the AIP about the right to counsel and the right to attend the hearing. The evaluator interviews the petitioner, the proposed guardian, family members, caregivers and doctors; reviews financial and, with court permission, medical records; and then files a written report. The report must address, among other things:

• Whether the AIP agrees to the appointment, and whether the AIP wants to attend the hearing and whether it should be held at the AIP's residence.
• The AIP's functional level and whether the AIP can manage activities of daily living.
• What available resources exist (power of attorney, health care proxy, trust, home care, representative payee) and whether they are sufficient.
• Whether a guardian is necessary and, if so, the least restrictive powers and duration.
• Whether the proposed guardian is suitable, and whether counsel should be appointed for the AIP.
• Whether the AIP's finances are sufficient to pay a guardian, a bond premium and the other costs of the proceeding.

The evaluator testifies at the hearing and is subject to cross-examination. Judges give the report weight, but it is a recommendation, and either side may contest it with their own evidence.

Step 5: Counsel for the AIP and Mental Hygiene Legal Service (MHL § 81.10)

The AIP is entitled to a lawyer. MHL § 81.10 requires the court to appoint counsel when the AIP asks for one, when the AIP wants to contest the petition, when the petition seeks a temporary guardian, when the petition seeks to move the AIP to a nursing home or other residential facility, when the relief sought would restrict the AIP's choice of residence or medical treatment, when the court evaluator recommends it, or when the court otherwise decides counsel would be helpful. The AIP may also retain a private attorney of their own choosing at any time.

Appointed counsel is drawn from the Part 36 list, or the court may appoint Mental Hygiene Legal Service (MHLS). MHLS is an agency of the Appellate Division that represents people in psychiatric centers, nursing homes and similar facilities, and it is frequently appointed as counsel or as court evaluator when the AIP is a facility resident. Under § 81.10(g), once counsel is appointed the court may in some cases dispense with the court evaluator, since counsel will be reporting the AIP's position directly.

Counsel for the AIP is an advocate, not a neutral. Their job is to present what the AIP wants, cross-examine the petitioner's witnesses, and hold the petitioner to the clear and convincing evidence standard. If the AIP prefers a different guardian, a narrower set of powers, or no guardian at all, counsel says so.

Step 6: Temporary Guardians and Other Provisional Relief (MHL § 81.23)

Where the AIP's health or property is at immediate risk, the petitioner may ask for a temporary guardian under MHL § 81.23. The court may appoint one, pending the hearing, if it finds danger in the reasonably foreseeable future to the AIP's health and well-being or a danger of substantial waste or dissipation of property. The order must specify the temporary guardian's powers and duration, and the appointment of a temporary guardian automatically triggers the appointment of counsel for the AIP. The court may instead issue a narrower order, such as freezing a bank account, restraining a particular person from the AIP's residence, or directing that a transaction not close until the hearing.

Temporary guardians are common in New York City petitions brought by Adult Protective Services or by a hospital, and in family petitions alleging that someone is draining an elderly parent's accounts.

Step 7: The Hearing (MHL § 81.11)

MHL § 81.11 gives the AIP the right to be present at the hearing, to present evidence, to call and cross-examine witnesses, and to be represented by counsel. The hearing must be conducted in the AIP's presence unless the AIP is outside the state, or the court finds that all information that could be gained from the AIP's presence has been obtained and the AIP is completely unable to participate. If the AIP cannot come to the courthouse, § 81.11(d) allows the court to hold the hearing where the AIP lives, and judges in the city do hold bedside hearings in hospitals and nursing homes. On demand, the issue of incapacity may be tried to a jury.

Many hearings are short because the parties have agreed on the outcome, often after the court evaluator's report circulates. The first court date is typically used to confirm service, confirm whether the AIP consents, address any temporary relief, and set a schedule. A contested hearing runs like a bench trial in this order:

1. Petitioner's case: testimony from the petitioner, family members, caregivers and any physician or expert the court permits, plus documents such as bank records and leases. The petitioner carries the burden even when no one objects.
2. Court evaluator's testimony: the evaluator describes the investigation and recommendations and is cross-examined by both sides.
3. AIP's case: the AIP's counsel presents the AIP's own testimony if the AIP wishes to testify, and any witnesses or records showing capacity or showing that less restrictive arrangements are working.
4. Objectant's case: if another relative has filed objections or a cross-petition (for example, asking to be appointed instead of the petitioner), they present their evidence.
5. Argument and decision: the judge may rule from the bench or reserve decision.

Step 8: The Decision and the Available Dispositions (MHL §§ 81.12, 81.15, 81.16)

The judge must find by clear and convincing evidence that the AIP is incapacitated, or that the AIP agrees to the appointment, and that a guardian is necessary. MHL § 81.15 requires specific findings, on the record or in writing: the AIP's functional limitations, why available resources are insufficient, the specific powers being granted and why each is the least restrictive form of intervention, and the duration of the appointment. MHL § 81.13 directs the court to issue its decision within seven days after the hearing and to sign the order and judgment within 45 days of the order to show cause, subject to extension for good cause.

MHL § 81.16 gives the court more options than "guardian or no guardian":

• Dismiss the petition: if a guardian is not necessary, or the petitioner has not met the burden.
• Authorize a protective arrangement or single transaction: for example, approve the sale of a house or the execution of a Medicaid application without appointing a guardian at all.
• Appoint a guardian with the AIP's consent: without a finding of incapacity.
• Appoint a guardian for personal needs, property management, or both: with powers limited to those the court finds necessary. The order can be as narrow as authority to manage one account or as broad as full personal and property authority.

Under MHL § 81.29, the incapacitated person keeps every right the order does not take away. The same section lets the court revoke or modify a power of attorney, health care proxy, or lifetime transfer the person made if it finds the document was signed while the person was incapacitated or the agent breached a fiduciary duty.

Step 9: From Order to Commission (MHL §§ 81.19, 81.25, 81.26, 81.27, 81.39)

The order and judgment names the guardian, but the guardian cannot act until the clerk issues a commission (the Article 81 equivalent of letters). Several things must happen first.

• Eligibility: under MHL § 81.19, any suitable adult may serve, including a non-resident; a not-for-profit corporation or a social services official may also serve. The court weighs the AIP's own nomination, the AIP's social relationship with the proposed guardian, any conflict of interest, and criminal and abuse-registry history. Someone whose only interest is as a creditor, or a non-relative who provides the AIP's care or housing, may not serve unless no one else is available. When relatives compete, courts often appoint an independent guardian from the Part 36 list.
• Bond: MHL § 81.25 lets the court require a surety bond, and most guardians with property powers over liquid assets are bonded unless the court instead orders the funds held in a restricted account that cannot be touched without a court order. The premium is paid from the incapacitated person's funds and recurs each year.
• Training: MHL § 81.39 requires the guardian to complete a training program approved by the Chief Administrator of the Courts. The court may waive it for good cause.
• Oath and designation: the guardian files an oath and, under § 81.26, a designation of the county clerk as agent for service of process.

Once the bond (if any), oath, designation and training certificate are filed, the clerk issues the commission under § 81.27. In New York City this step commonly takes several weeks after the order is signed, longer if a bond must be underwritten.

Step 10: The 90-Day Initial Report and the Annual Report (MHL §§ 81.30–81.32)

Court supervision does not end with the appointment. Under MHL § 81.30, the guardian must file an initial report within 90 days after the commission issues. It inventories the person's assets and income, states where the person lives and what the care plan is, and lists the steps taken to marshal property.

Under MHL § 81.31, the guardian then files an annual report each year, in the month of May unless the court directs otherwise. The report covers the person's physical and mental condition, residence, medical care, the guardian's visits, every receipt and disbursement, and the guardian's compensation. Under § 81.32 the court appoints a court examiner from the Part 36 list to review the initial and annual reports and to report to the court on them; the examiner's fee is paid from the person's funds. The guardianship or compliance office in each county's Supreme Court tracks late and missing reports, and a guardian who fails to file can be surcharged or removed under § 81.35.

The Guardian's Ongoing Duties (MHL §§ 81.20–81.22, 81.28)

Article 81 does not use the word "ward." The person is the "incapacitated person," and MHL § 81.20 requires the guardian to exercise the utmost care and diligence, to act with the utmost trust and loyalty, and to involve the person in decisions to the greatest extent possible. The statute also requires the guardian to:

• Visit the person in person at least four times a year, and more often if needed.
• Learn the person's preferences, wishes and values and make decisions accordingly. The decision standard is substituted judgment where the person's wishes can be determined, and best interests where they cannot.
• Keep complete records of every transaction, and keep the person's property separate from the guardian's own.
• Exercise only the powers the order grants. Powers over property are listed in § 81.21 and powers over personal needs in § 81.22; anything outside the order requires a further application to the court.

Guardian compensation is set by the court under MHL § 81.28. Courts frequently use the executor commission schedule in SCPA § 2307 as a guide for property guardians, but they are not bound by it, and many family guardians serve without compensation.

How Long an Article 81 Case Takes in New York

The statute's deadlines (hearing within 28 days, decision within 7 days, order within 45 days) are targets, and courts extend them routinely. A realistic calendar for the downstate counties looks like this:

• Preparing the petition: one to three weeks, depending on how quickly financial information and a supporting medical affirmation can be gathered.
• Signing of the order to show cause: a few days to two weeks after submission, faster when a temporary guardian is requested.
• First court date: usually set within the 28-day window, but often adjourned once for service problems or because the court evaluator's report is not yet filed.
• Uncontested case, hearing to order: most uncontested petitions in New York City are decided within two to four months of filing.
• Contested case: six months to well over a year when incapacity is disputed, there are competing petitions, or a jury is demanded.
• Order to commission: several additional weeks for training, bond and the oath.

If the person's safety or money is at immediate risk, the temporary guardian procedure under § 81.23 can put someone in place within days while the main case proceeds.

What an Article 81 Guardianship Costs and Who Pays

The costs fall into four groups. The figures below are typical ranges in the downstate counties, not quotes; every fee paid from the incapacitated person's funds must be approved by the court.

• Court fees: the Supreme Court index number fee, the request for judicial intervention fee and the motion fee for the order to show cause together come to roughly $350 under the CPLR fee schedule.
• Court evaluator and appointed counsel: paid at hourly rates approved by the court. In a simple uncontested matter each is commonly in the low thousands of dollars; in a contested matter with substantial assets the fees can be considerably higher. Under §§ 81.09(f) and 81.10(f), if the petition is granted these fees are paid from the incapacitated person's estate; if the petition is denied or dismissed, the court may direct the petitioner to pay them.
• Petitioner's attorney: the petitioner pays counsel up front. If the petition is granted, § 81.16(f) allows the court to award reasonable compensation to the petitioner's attorney from the incapacitated person's estate. If the petition fails, the petitioner ordinarily absorbs the cost.
• Ongoing costs: the annual bond premium, the court examiner's fee for reviewing each annual report, and the guardian's commission if the court awards one. These continue for the life of the guardianship and are paid from the person's funds.

When the incapacitated person has little or no money, the court may appoint MHLS or a not-for-profit community guardian program, and fees may be reduced or paid under county programs. The court evaluator's report addresses this question directly.

Contested Cases, Alternatives and Financial Exploitation

These three topics each have their own page on this site. In brief:

Objecting to a guardianship: the AIP, or any person entitled to notice, may file objections or a cross-petition. The grounds usually are that the petitioner cannot meet the clear and convincing standard, that available resources make a guardian unnecessary, or that the proposed guardian is unsuitable. The procedure, deadlines and evidence are covered in how to fight a guardianship.

Alternatives to guardianship: a durable power of attorney, a health care proxy, a revocable trust, a representative payee, or a supported decision-making agreement under MHL Article 82 are each an "available resource" that can make a guardianship unnecessary if executed while the person had capacity. See our advance directive page for how these documents work in New York.

Financial exploitation: a guardianship petition is often the fastest way to stop an agent, caretaker or relative from draining an elderly person's accounts, and § 81.43 allows the guardian to bring a turnover proceeding to recover property. The allegations still must be proved. If the problem is an agent misusing a power of attorney, see what to do about an agent abusing a power of attorney and our breach of fiduciary duty page.

How a Guardianship Ends (MHL §§ 81.36, 81.44)

Under MHL § 81.36, the incapacitated person, the guardian, or anyone entitled to notice may petition to discharge the guardian or modify the powers if the person has regained capacity, the person's needs have changed, or the guardianship is no longer the least restrictive option. The court may also act on its own motion. If the guardian resigns, dies, or is removed under § 81.35, the court appoints a successor.

On the incapacitated person's death, MHL § 81.44 requires the guardian to serve a statement of death within 20 days, to file a statement of assets and known claims within 150 days, and to file a final report and account. The guardian may pay funeral expenses and preserve property but otherwise turns the estate over to the executor or administrator once one is appointed by the Surrogate's Court.

Frequently Asked Questions

Does the alleged incapacitated person get a lawyer?

Yes, whenever the AIP asks for one or wants to contest, and in the other situations listed in MHL § 81.10, including any petition that seeks a temporary guardian or a nursing home placement. The AIP may also hire a private attorney. The lawyer advocates for what the AIP wants, not for what others think is best.

Can the AIP attend the hearing?

Yes. MHL § 81.11 requires the hearing to be held in the AIP's presence unless the AIP is out of state or is completely unable to participate. If the AIP cannot travel, the court can hold the hearing at the hospital, nursing home or residence.

Who pays the court evaluator?

If a guardian is appointed, the incapacitated person's estate pays the court evaluator's court-approved fee under § 81.09(f). If the petition is dismissed, the court may order the petitioner to pay it.

How long does it take?

Two to four months for a typical uncontested petition in New York City, from filing to order; six months or more when the case is contested; plus several weeks after the order for the commission to issue. A temporary guardian can be appointed within days if there is immediate danger.

Does the proposed guardian need to live in New York?

No. MHL § 81.19 allows any suitable adult to serve. The court considers the person's relationship with the AIP, any conflict of interest, and criminal and registry history. Distance is a practical factor given the four-visit requirement.

What is the difference between a guardian and an agent under a power of attorney?

An agent is chosen by the person, acts without court supervision, and can be removed by the person at any time while the person has capacity. A guardian is appointed by a judge after a finding of incapacity or with consent, acts only within the powers in the court's order, and files reports with the court every year.

Is the court file public?

Supreme Court files are generally public, but MHL § 81.14 allows the court to seal the record or portions of it on good cause, and medical information is routinely protected.

About the Author

Albert Goodwin is a New York attorney and the principal of the Law Offices of Albert Goodwin in Manhattan. His practice includes Article 81 guardianship proceedings in the Supreme Courts of New York City and the surrounding counties, along with estate administration and litigation. This page was reviewed against the current text of Mental Hygiene Law Article 81 and the Rules of the Chief Judge. It is general information about New York procedure, not legal advice for a specific situation.

Talk to Us

If you are considering a petition, have been served with one, or have been named as a proposed guardian, a New York guardianship attorney at the Law Offices of Albert Goodwin can help. Our office is in Midtown Manhattan and we appear in the guardianship parts in all five boroughs and on Long Island. Call 212-233-1233 or email email@nyestateslawyer.com to discuss your situation.