New York Probate Lawyer Blog
When the term Guardianship is referred to, a general perception is that someone is appointed to take charge of the affairs of an individual who is incapable of handling his own matters. While this general perception is accurate, it does not really identify the existing Guardianship laws and procedures which exist in New York. Guardianship law in New York can be very complicated and perplexing. The New York Probate Lawyer Blog has published many articles discussing Guardianship issues.
There are two statutes which provide a framework for the Guardianship appointment. Article 81 of the Mental Hygiene Law sets out the manner by which a Guardian can be appointed for an adult. The foundation of this law is the determination of incapacity. Incapacity is demonstrated by a review of someone’s functionality and their ability to handle their activities of daily living. A finding of incapacity requires that the alleged incapacitated person cannot take care of their personal needs and/or property management and does not appreciate their disability and as a result would suffer harm if no Guardian is appointed.
Although Article 81 provides a Court appointed Guardian with many possible powers, a key aspect of this law is that the Court is provided with great discretion to adjust and limit Guardianship powers to meet the requirements of the situation. The overriding sentiment is that the Court should impose the least restrictive means to accomplish the needs of a person and afford them the greatest liberty possible.
In addition to Article 81, a Guardianship may also be obtained through Article 17-A of the Surrogate’s Court Procedure Act. This statute typically applies to minors who are intellectually or developmentally disabled. However, there are many differences between the two statutory provisions. These include the fact that Article 81 is more adaptable to given situations while Article 17-A is by its terms more restrictive as to a Guardian’s powers. The Article 17-A framework appears to take a more all or nothing approach to the Guardian’s authority with limited tailoring to accommodate each individual situation.
An interesting example of the contrast between these two sets of laws was recently examined in a decision by Hon. Keith J. Cornell, Surrogate Rockland County, entitled Matter of The Petition of Y.G. and F.G.Q., Co-Guardians of I.G., a developmentally disabled person, for leave to draw and apply funds dated November 2025. In I.G. the Guardians sought permission to withdraw $100,000.00 from the Guardianship for a charitable contribution to the church. The Surrogate reviewed and discussed the apparent restrictive nature of the Article 17-A format which did not specifically allow such a payment. Article 81 does grant a Guardian gift giving powers. The Court did find that the Surrogate’s Courts were given a certain amount of discretion and inherent authority to allow an Article 17-A Guardian to exercise certain powers. It was found that the doctrine of substitute judgment was recognized by the Court. Thus, the Surrogate granted the authority to the Guardians to make the charitable gift.
As can be seen, Guardianship cases in New York can be complex. Representation by an experienced Guardianship attorney may be essential. I have represented Guardians and Petitioners and family members in these proceedings in New York for over 40 years. Call me now for a free confidential review. We provide reasonable and flexible fee arrangements and personal represetation.
New York Trusts and Estate Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Quens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has questions regarding these matters, please contact me at (212) 355-2575 for initial free consultation.