An Article 81 Guardianship is a judicial process before the Supreme Court under New York State Mental Hygiene Law for persons who lack mental ability to implement judgements or whose judgements are insufficient. It is a judicial judgment made in 1993 that an individual is incapable based on clear and compelling evidence. A person may be unable to pay bills or manage their finances but may be competent to make healthcare decisions. In such a scenario, a court may appoint a guardian with solely financial management responsibilities.


Who Can Be Appointed as a Guardian ?

When deciding who should be the guardian, the court usually gives precedence to nominations of the disabled individual, the petitioner, and family members. If family members disagree on who should serve as guardian, the court will usually select an independent guardian, whose name will be drawn from a list kept by the court. Such a person must be 18 years of age or older. 

Furthermore, in order to act as guardian, the individual must be able to secure a bond in an amount determined by the court. A bond is an insurance plan paid for with the incompetent person's assets that protects the incapacitated person from theft or other misbehavior by the guardian. 

What is Guardianship Over a Person? 

Guardianship over the Person empowers a guardian to make all daily choices for the individual, including where the individual will reside, who will provide personal care and support, and medical decisions.

What is Guardianship Over Property? 

Guardianship over Property empowers the guardian to make property choices for the individual. The guardian's power will be determined by the individual's capacity and the size of their possessions.

The Duties and Responsibilities of a Guardian

The following are the general duties of an Article 81 guardian: 

  1. The guardian shall exercise only those powers permitted by the court order
  2. A guardian must exercise the utmost care and skill when acting for the benefit of the AIP
  3. A guardian must demonstrate the utmost trust, devotion, and fidelity to the AIP
  4. A guardian must file initial and final reports

A person who desires to serve as a guardian must first pass a six-hour training that teaches the guardian's responsibilities. The following are some of the more significant tasks. Within 90 days of being appointed as guardian, the guardian must file his or her first report. The initial report generally includes a brief overview of the incapacitated person's condition as well as a list of the incapacitated person's assets.

The guardian must produce an annual report with the court by May 31 of each year, including all revenue and disbursements for the preceding calendar year. At the end of the guardianship, the guardian must produce a final report that outlines all of the guardian's activities for the duration of the guardianship. At least four times each year, a guardian must also visit the disabled individual. 

The Process in Which a Guardianship is Appointed

Filing an Order to Show Cause and Petition in the Supreme Court and paying a fee to get an Index number initiates this sort of action. When a petition is filed with the court, the court will usually appoint what is known as a court evaluator. The court evaluator's role is to conduct an investigation and give the court a report on the contents and circumstances of the case. Normally, the court evaluator will give a review on whether or not a guardian is required. The court may also appoint a lawyer to represent the disabled individual in specific situations. When the petition is filed, the court also sets a hearing date and requires that close family members be notified of the petition's filing. The petitioner must show the court with clear and compelling proof that the disabled person is incapable of handling certain areas of their personal and/or financial affairs during the hearing. At the hearing, the court evaluator provides its decision.

How Long Does a Guardianship Last?

A guardian appointed under Article 81 stays in office until any of the following events occurs:

  1. he or she is removed as guardian for failure to obey with any court order, or for improper conduct, or for any other reason that the court deems just
  2. the AIP has gained the ability to perform some or all of the personal needs and/or property management functions that the guardian was authorized to perform
  3. the AIP passes away

Do I Need an Attorney?

​​Yes. The legislation requires that certain standards be observed, such as the form of the papers, service of process, notifications, and so on. You will need an attorney to correctly write paperwork for this procedure in order to guarantee that the regulations are followed.

You can speak with an estate planning professional at the Law Office of Inna Fershyten who concentrates in guardianship to help you file for guardianship for your loved one. Please contact us at (718) 333-2395.