- How does a Guardianship Proceeding Start?
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 a Guardianship Proceeding?
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?
The AIP is personally served with a copy of all of the papers. 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.
- What Happens Between the Filing of the Petition and the 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. 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 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.
After all sides have presented their cases, 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.
Additional resources provided by the author
For more information, please contact probate, guardianship, and estate planning attorney Regina Kiperman:
Or visit her at her new location:
80 Maiden Lane
New York, NY 10038
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