New York Guardianship Can Be Contested or Based Upon Consent

New York Guardianship proceedings are controlled by Article 81 of the New York Mental Hygiene Law (“MHL”). The New York Probate Lawyer Blog has provided numerous posts regarding issues concerning this type of court proceeding.

The essence of a Guardianship proceeding is to determine whether the appointment is needed to assist a person with personal needs or property management. MHL Section 81.02(a)(2) provides that a Guardian can be appointed when the alleged incapacitated person (“AIP”) either “agrees to the appointment” or if the AIP is found to be “incapacitated”. In most proceedings, the determination of incapacity is the central focus of the Court hearing. The statute requires “clear and convincing” evidence to find incapacity. A court hearing involves many different participants which may include the petitioner (the person who commences the Court case), the AIP, a Court Evaluator, a Court-appointed attorney who represents the AIP, New York State Mental Hygiene Legal Service and the local Medicaid office such as the New York City Human Resources Administration. Also, family members and friends of the AIP may become participants if they intervene in the proceeding.

If the AIP opposes the appointment of a Guardian, the Court may hear the testimony of many witnesses and may review numerous documents with regard to its consideration of the necessity of an appointment. All of the aforementioned participants play an important role in the Court case and in providing the Court with all the information needed to make a final determination. In Contested Guardianship Proceedings, the Court wants to fully understand the situation and circumstances concerning the AIP so that it can assess whether the statutory mandate of “incapacity” has been shown.

It should be recognized that even in a case where “incapacity” is beyond dispute, the Court requires a hearing and the presentation of evidence regarding the need for the appointment. New York Guardianship Attorneys know that in such matters the Court will want to hear testimony from the petitioner and receive evidence of the AIP’s condition from a social worker or doctor or in some other acceptable form to document the basis for the Guardian’s appointment.

As noted earlier, MHL 81.02(a)(2) allows the appointment of a Guardian where a person consents to the appointment. Consentual guardianships appear to be the exception rather than the rule since there is always the issue as to whether the AIP has the capacity to make a knowing consent. However, there are occasions when the Court will find that consent is appropriate. Such was the situation in a recent case decided by Bronx Supreme Court Justice Alexander W. Hunter entitled “Matter of the Guardian for L.J.L.” decided on May 6, 2013 and reported in the New York Law Journal on May 17, 2013. In L.J.L. the Court held a hearing and recognized that Article 81 of the MHL does not provide any statutory guidance to assist the Court in deciding whether a person has the capacity to consent to a Guardian. However, after considering all of the evidence presented, the Court in L.J.L. found that the AIP had capacity to consent and appointed a Special Guardian of the person and property of the AIP for the limited period of one year.

New York Guardianship Attorney Jules Martin Haas, Esq. has been representing clients in Queens Guardianship Proceedings and Manhattan and Brooklyn Guardianship Proceedings and other Counties throughout the past 30 years. If you or someone you know is involved with or has questions about a New York Guardianship, please contact me at (212) 355-2575 or email:, for an initial consultation.

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