This post outlines what happens at a NYC Article 81 Guardianship hearing.
An Article 81 Guardianship proceeding is initiated by filing an Order to Show Cause and Verified Petition with the Supreme Court in the County where the alleged incapacitated person (“AIP”) resides.
The Order to Show Cause will recite the powers requested, have spaces for the Judge to appoint a Court Evaluator, and if necessary, a temporary guardian and an attorney for the AIP. The Order to Show Cause will also set forth the date and time of the hearing and the powers that are requested.
The Verified Petition typically sets forth the AIP’s functional limitations and the reasons that the Petitioner believes that a Guardian is necessary. After the Judge signs the Order to Show Cause, the appropriate papers have to be distributed among the various parties.
Who can Commence an Article 81 Guardianship Proceeding?
Pursuant to Mental Hygiene Law 81.06, in New York, a guardianship proceeding can be commenced by:
- the person alleged to be incapacitated; or
the next of kin of the AIP (eg: spouse, child, parent, sibling); or - an executor or administrator when the AIP is the beneficiary of an estate; or
- a trustee of a trust when the AIP is the beneficiary of a trust; or
- a person with whom the AIP resides; or
- a person otherwise concerned with the welfare of the AIP; or
- a facility where the AIP is either a patient or a resident.
Who Gets a Copy of the Guardianship Papers?
Under Mental Hygiene Law (MHL) § 81.07, specific individuals and entities must be served with notice of a guardianship proceeding to ensure due process and protect the rights of the alleged incapacitated person (AIP).
Who Must Be Served with Notice?
- The Alleged Incapacitated Person (AIP)
- The AIP must be personally served with a notice of the proceeding and a copy of the petition.
- The notice must be in at least 12-point bold type and inform the AIP of their rights, including the right to contest the petition, to be represented by an attorney, and to request a jury trial.
- Court-Appointed Court Evaluator
- If the court appoints a court evaluator (a neutral individual who investigates the AIP’s condition and reports to the judge), they must also be served.
- Spouse, Adult Children, and Parents of the AIP
- If applicable, the AIP’s spouse, adult children, and parents must be served with notice.
- Siblings and Close Relatives (If No Spouse, Children, or Parents Exist)
- If the AIP has no spouse, children, or parents, then their siblings and any other persons or entities the court deems proper must be served.
- The Person or Institution Having Care or Custody of the AIP
- If the AIP is in a nursing home, hospital, or other care facility, the administrator or director must be served.
- The Chief Executive Officer of a Facility Where the AIP Resides
- If the AIP resides in a psychiatric facility, nursing home, or group home, the chief officer or administrator of that facility must be served.
- New York State Office of Mental Health or Office for People With Developmental Disabilities (If Applicable)
- If the AIP receives services from these agencies, they must be notified.
- The Social Services Official (If the AIP Receives Public Assistance or Medicaid)
- If the AIP is receiving public assistance, Medicaid, or Supplemental Security Income (SSI), the local Department of Social Services must be notified.
- Any Other Person the Court Deems Necessary
- The court may require additional individuals or entities to receive notice if it finds they have an interest in the AIP’s welfare.
PRACTICE TIP: The Court Evaluator also gets a copy of the papers. If the Court appoints an attorney for the AIP, then the attorney for the AIP receives a copy of all of the papers as well. The Petitioner, Court Evaluator, AIP, and attorney for the AIP are the only “parties” to the proceedings. The AIP’s family members and concerned relatives are “interested persons” but are not necessarily parties and are not immediately entitled to a full set of all of the papers. These “interested persons” only receive a Notice of Proceeding and a copy of the Order to Show Cause. In order to receive a full copy of the petition, these “interested persons” must typically appear in the proceeding and file a cross-petition seeking to be appointed guardian or seek other relief.
Service Requirements of an Article 81 Guardianship Hearing
Timing: The notice must be served at least 14 days before the scheduled hearing.Pursuant to MHL 81.07: he AIP is personally served with a copy of all of the papers.
Personal Service: The AIP must be served personally.
Mail or Other Methods: Other parties may be served by mail or another method approved by the court.
What Happens Between the Filing of the Petition and the NYC Article 81 Guardianship Hearing?
The Court will appoint a Court Evaluator whose job is to be the eyes and ears of the Court. The Court Evaluator has to investigate all of the allegations in the petition and be able to discuss it at the guardianship hearing. The Court Evaluator will meet with the Petitioner, the Alleged Incapacitated Person, the Cross-Petitioner, if there is one, and other people mentioned in the Petition whom, the Court Evaluator believes, could be helpful in preparing recommendations to the Court. The Court Evaluator will render an opinion as to whom the Evaluator believes to be an appropriate person to serve as a Guardian.
What Happens at the Article 81 Guardianship Hearing?
The Petitioner usually goes first and presents his case in chief. This may mean obtaining testimony from the Petitioner, the AIP’s social worker, the AIP’s friends, neighbors, and other family members.
If Counsel for the AIP has been appointed, then Counsel for the AIP will have an opportunity to ask questions.
After the Petitioner rests, if the petition is uncontested, then the Judge will typically ask the Court Evaluator to testify as to the Court Evaluator’s observations.
If the Petition is contested, the AIP’s attorney (if they have one) may cross-examine the petitioner’s witnesses. The judge may ask questions to better understand the AIP’s level of functioning. All rules of evidence and the CPLR apply.
After all sides have presented their cases in an Article 81 Guardianship hearing, then the Judge will set forth their findings on the record. The Judge will then ask that a party (usually the Petitioner) settle the final Order and Judgment. The person settling the Order on Notice should then get the transcript from the Court Reporter and should prepare a notice of settlement, with proposed Order and Judgment.
If the Petitioner wants the Court to award fees from the funds of the Alleged Incapacitated Person, then the Petitioner should also submit his Affirmation of Legal Services to the Court.
We can assist with the Article 81 Guardianship hearing. Please contact us to discuss.
Additional resources provided by the author
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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