New York Guardianship FAQs

Under MHL § 81.02, a court may appoint a guardian to make personal and/or property decisions for an adult who, due to incapacity, cannot adequately understand and appreciate the nature and consequences of such decisions. Article 81 guardianships are tailored to the individual’s functional limitations, meaning the court may grant only those powers necessary to meet proved needs.

In Brooklyn, Queens, Staten Island, the Bronx, Nassau or New York City, a petition may be filed by the alleged incapacitated person (AIP) themselves, a family member, a health‑care facility, a social services official, or “anyone concerned with the welfare of the person,” including a friend or neighbor (MHL § 81.06). RK Law PC can advise on standing and strategic considerations before filing.

Guardian of the person: makes personal and health‑care decisions, chooses residence, and consents to medical or psychiatric treatment.

Guardian of the property: manages finances, pays bills, applies for benefits, and protects assets.
A single individual (or co‑guardians) can hold both roles or the powers can be divided, depending on the AIP’s needs (MHL § 81.21, § 81.22).

The petitioner must prove by clear and convincing evidence that (1) the AIP is likely to suffer harm because they cannot manage personal or property needs, and (2) no less‑restrictive alternative (such as a valid power of attorney) adequately addresses those needs (MHL § 81.12). Testimony about functional limitations and a court‑appointed evaluator’s report are key evidence.

Costs include:
Filing fee 
Examiner fee (varies by county and by size of guardianship)
Court evaluator fee (set by the judge, based upon hours worked and complexity)
Court Appointed Counsel to the AIP Fee (set by the judge, based upon hours worked and complexity)
Petitioner’s Legal fees (Guardianship expenses may be paid from the AIP’s resources if the petition succeeds (per MHL § 81.16)).

From filing to hearing, 4–8 weeks is typical in New York City courts, but complex cases can extend several months, especially if contested or if additional capacity evaluations are required.

Guardians must:
Qualify (post bond if ordered, sign oath & designation)
File an initial report within 90 days (inventory of assets and care plan) (MHL § 81.30)
File annual accountings with receipts (MHL § 81.31)
Act in the AIP’s best interests and avoid self‑dealing
Seek court approval for major decisions (e.g., selling real property) Failure to comply may result in removal or surcharge.

Yes. Under MHL § 81.36, any interested person or the guardian may petition to modify powers or terminate the guardianship if the AIP’s condition changes, the powers prove excessive, or the guardian resigns.

Opposition strategies include:
Arguing lack of jurisdiction or standing
Demonstrating less‑restrictive alternatives (valid advance directives)
Challenging the medical/functional evidence of incapacity

Presenting the AIP’s express wishes and testimony RK Law PC regularly represents respondents and aggressively protects autonomy rights.

The judge hears witness testimony, reviews the evaluator’s report, and may personally interview the AIP. The proceeding is civil but follows formal rules of evidence. At its conclusion, the court issues an Order and Judgment specifying the guardian’s powers and duration.

No. Advance directives are private documents that grant authority without court involvement. Guardianship is a public, court‑supervised remedy imposed when existing documents are absent, invalid, or inadequate. Courts favor advance planning as the less‑restrictive option.

Focused Practice – Decades of experience in guardianship, elder law, and estate litigation.
Courtroom Strength – Proven record advocating in New York’s Supreme and Surrogate’s Courts.
Compassionate Counsel – We prioritize dignity, autonomy, and family harmony.
Transparent Fees – Clear retainers and phased billing options.