New York along with every other state, most United States administered territories and even The Bureau of Indian Affairs for Indian Tribes has an adult protective services enabling statute.  New York’s adult protective services statute is found in the archaically entitled Title 81 of the New York State Mental Hygiene Law.  It allows for the appointment of a guardian over an incapacitated person only after a Court makes two specific findings of fact:

1) The allegedly incapacitated person is unable to provide for his/her personal needs or unable to manage their property and financial affairs; and

2) The person cannot adequately understand and appreciate the nature and consequences of their inability.

A Court reviewing the case shall give primary consideration to a number of issues, not the least of which is the alleged incompetent’s functionability and functional limitations.  These powers should be a last resort and should only be made after considering the availability of resources that may help to avoid entering a judgment of guardianship over an individual.  Home health aides, visiting nurses, adult day care, powers of attorney and other legal enabling documents will be considered by a reviewing Court.  A Court should only grant guardianship when it is beneficial to the protected adult and no sufficient and/or reliable alternative exists.


        There is a surprisingly long list of people and entities that may file for guardianship over an allegedly incapacitated person.  They are:

1) The incapacitated person themselves.  One of the requirements of the second element of an entry for a judgment of Guardianship is for the person to consent.  Certainly if the person makes a knowing and voluntary consent, there is no need to litigate the issue of incapacity.  It certainly begs the question, however, if a legally incapacitated person can even make a knowing and voluntary consent.

2) A presumptive heir to the estate of an incapacitated person.

3) The executor to an estate, to which the alleged incapacitated person is a beneficiary.

4) The trustee to a trust in which the alleged incapacitated person is a donor or beneficiary.  This is in many ways the same thing as number three above.

5) Anyone with whom the incapacitated person resides.

6) Anyone concerned for the welfare of the alleged incapacitated person.  This is where the Department of Social Services has standing to bring an action in Court to obtain a judgment of guardianship.

7) The Chief Executive Officer or designee of a facility in which the alleged incapacitated person is a patient or resident.   

The petitioner has to file the application in the Supreme Court of New York (trial court) or the Surrogate’s Court if the alleged incapacitated person has an interest in ongoing estate proceedings.


        The various requirements are controlled by statute; therefore, most guardianship proceedings take less than two months.  Most specifically, a hearing on the merits must occur within 28 days of the Court signing the initial Order to Show Cause (emergency petition), the Court must issue its Order on the matter within seven days of the hearing on the merits and the person to whom will be appointed as the Guardian must receive his/her commission within fifteen days of that.  All of these time lines can be extended by the Court for good cause, such as if the alleged incapacitated person hires an attorney to contest the basic facts of the case.  If a guardian is appointed, the Court must tailor it to the specific needs of the case.  

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