New York Article 81 Guardianships

When an “Incapacitated Person” (IP) is no longer able to make certain decisions concerning the management of his or her property and/or health or well-being, the court can appoint a guardian to make these decisions for him or her.

New York’s Guardianship Statute, Article 81 of the Mental Hygiene Law, ensures that the guardian’s authority is narrowly tailored to do only what the IP can no longer do for himself or herself.

The need for a New York guardian could arise when an IP becomes physically or mentally incapacitated for any number of reasons, including accident, disease, or merely the natural process of aging.

This incapacity must pose a risk of harm to the individual who must be incapable of understanding the nature and consequences of his or her incapacity and its potential risk.

The following people may commence a proceeding for the appointment of a New York guardian: the person himself or herself, children, siblings, parents, the chief executive of a hospital or other health facility where the person resides, someone with whom the person resides and others who can demonstrate direct concern for the welfare of the person.

The court appoints an impartial court evaluator to interview the alleged IP and make recommendations to the court.The court hears from all of the interested parties involved, especially the alleged IP if able to communicate his or her wishes.

The court-appointed evaluator, the alleged IP’s attorney if represented by legal counsel and the person seeking the guardianship are all present and heard.

The New York guardian’s chief responsibility is to make decisions for the IP.These decisions must be well reasoned, protecting the IP and within the scope of the authority the court has granted the guardian, including: managing the monthly income and expenses of the IP, selling real or personal property, hiring home health aides and applying for government benefits.

The guardian is also responsible for visiting the IP at least four (4) times per year, providing the court with a report 90 days after being appointed that explains the steps the guardian has taken to meet the needs of the IP and providing the court with a yearly report on the status of the IP and whether the guardianship should continue.The guardian does not have the power to make health care decisions on behalf of the IP unless specifically authorized by the court.

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