Guardianship Lawyers in New York City and Suffolk County

Article 81 guardianships are most often used when an individual is suffering from some type of cognitive impairment, like Alzheimer’s disease or dementia.  Unlike an Article 17-A guardianship, which typically gives blanket powers to an agent to control the affairs of another in much the way a parent controls the affairs of a child, an Article 81 guardianships is more specific in its terms and is most often used in the case of an incapacitated person who previously directed his or her own affairs. 

The alleged incapacitated person (AIP) can petition for their own guardianship.  Also, relatives of the AIP, the administrator of a facility where the AIP currently resides, or any person who is concerned with the wellbeing of the AIP can petition to be a guardian.

The petitioner must file an order to show cause and a petition with the Surrogate’s Court of the county where the AIP lives.  These documents detail the reasons why the petitioner believes that the AIP needs a guardian to oversee his or her affairs.  Then, a court evaluator is appointed by the judge in the proceeding.  The court evaluator is responsible for submitting a recommendation to the Court on the necessity of the Article 81 appointment through a series of interviews and other investigations.

A hearing is held at which it is determined whether an Article 81 appointment is necessary.  The AIP, petitioner, and court evaluator are present at this hearing, though the AIP’s appearance can be waived if it is determined that the AIP cannot meaningfully participate in the heating.  The petitioner has the burden of proving that the AIP is incapacitated and that harm would result if a guardian were not appointed. Alternatively, the AIP could consent to the guardianship but the judge would still have to decide that a guardian was necessary.

Should the court decide that an Article 81 guardianship is justified, the court will determine which powers the guardian will be granted.  The powers must be the least restrictive interventions necessary to help with the specific needs of the AIP as determined by the court.

A guardian will have to file a Consent to Act form.  Also, a guardian completes an Oath and Designation in which he or she swears to carry out the appointment faithfully and with the best interests of the incapacitated person in mind. The guardian must take a training course related to his or her new responsibilities and is required to submit a within 90 days documenting that a bond was posted (if needed)  and the course was completed. Each year thereafter the guardian is required to submit an annual accountings to the court. 

Under Article 81, a “Guardian of the Person” can be appointed to oversee the day-to-day maintenance of the physical life of the incapacitated person, managing their health care needs, planning for meal service, decide whether the ward shall live, and directing other daily activities to help keep the incapacitated person safe.

A Guardian of the Property is responsible for managing the finances of the incapacitated person. The guardian can be a different agent than the “Guardian of the Person,” though the same person can serve in both rolls.  

A guardian typically makes an initial report within 90 days of the inception of the guardianship.  In this report, the guardian attests to the general wellbeing of the incapacitated person and lists his or her assets.  Thereafter, the guardian is responsible for filing an annual report which similarly attests to the financial, emotional, and physical wellbeing of the incapacitated person.