Articles Posted in Guardianships

Article 81 of The New York Mental Hygiene Law (MHL) entitled “Proceedings For Appointment Of A Guardian For Personal Needs Or Property Management”, provides the substantive and procedural requirements for Guardianships in New York.  The New York Probate Lawyer Blog has published many articles concerning issues relating to, and aspects of, Guardianship law.

The touchstone provision of Guardianship is a determination that a person is incapacitated and requires the appointment to provide for his personal needs and/or property management.  This basic pronouncement is found in section 81.02 of the MHL which is entitled “Power to appoint a guardian of the person and/or property; standard for appointment”.  Incapacity, which must be shown by clear and convincing evidence, exists when a person is likely to suffer harm when, according to the statute, a person cannot handle his property management or personal affairs and cannot appreciate and understand the consequences and nature of such disability.

As can be seen from the language of the statute, demonstrating that a person requires a guardian because they are incapacitated is not a clear, black or white issue.  Capacity is based upon a person’s functional ability- how does the person handle activities of daily living such as personal hygiene, shopping, taking care of finances or medical needs, dressing oneself, paying bills, etc.

The recent news regarding the alleged murder of entertainment personality Rob Reiner and his spouse, Michele, by their son, Nick Reiner, was startling.  One of the immediate questions which arose is what could motivate Nick, the son of such well-known parents, to allegedly cause them deadly harm.

An insight into the family dynamic may be found in the recent disclosure that Nick was the subject of a Court directed conservatorship in 2020.  As reported in an article by Winston Cho in The Hollywood Reporter on January 16, 2026 entitled “Nick Reiner’s Mental Health Conservatorship Could Complicate Prosecution”, Nick was the subject of a conservatorship which is utilized for individuals with serious mental illness and allows for involuntary psychiatric care.  Apparently, the conservatorship ended in 2021.

In New York, there is no so-called conservatorship.  Such phraseology ended years ago.  Article 81 of the New York Mental Hygiene Law refers to individuals as being incapacitated persons or alleged incompetent persons.  The New York Court, upon a finding of incapacity, will appoint a Guardian for personal needs and/or property management.  Essentially, incapacity requires that an individual is suffering from some condition which prevents them from handling their affairs and they cannot appreciate the situation and are, thus, at risk.

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.

Time and again situations arise where the circumstances and proceedings concerning an Article 81 Guardianship and estate litigation in the Surrogate’s Court intersect.  The New York Probate Lawyer Blog has published many articles concerning the topics of Guardianship and litigation in estates.  At the core of any Article 81 Guardianship proceeding is the need to determine by clear and convincing evidence whether a person is incapacitated.

Incapacity is a determination that someone, due to some disability or condition, is incapable of handling their personal needs or property management and cannot appreciate that their diminished capacity is interfering with their functionality.  Unless a Guardian is appointed, such person would suffer harm.  These issues involve decisions or actions an alleged incapacitated person may have made and, sometimes, whether the person was subjected to undue influence or manipulation which took advantage of a lack of capacity.  Article 81 cases often involve assertions by interested parties such as family or friends allege wrongdoers have converted an AIP’s assets for their own benefit or abused advance directives such as a Power of Attorney.

Once a person dies, it is very common that accusations of improper conduct, which were raised in a Guardianship case, transfer over or re-emerge in estate litigation.  Various matters relating to undue influence or testamentary capacity may be asserted in a Will Contest.  Also, these concerns may be relevant with regard to pre-death transfers of assets by a decedent when it was asserted in a Guardianship case that there was manipulation or fraud. Information disclosed or determinations made by a Court in a Guardianship case may be referenced to support assertions in an estate litigation proceeding.  It may be that in the estate case, conduct by certain individuals which was exposed in the Guardianship proceeding may be referred to challenge a person’s viability to be appointed as an Executor, Administrator or Trustee.  In a Guardianship case the Court typically appoints a Court Evaluator who does an extensive review of the factual basis for the appointment of a Guardian and who provides certain recommendations to the Court.  The Report of a Court Evaluator may contain important information which is relevant in the estate proceedings.

There are many situations where it appears that a Guardian under Article 81 of the Mental Hygiene Law should be appointed.  This statute provides for the appointment of a Guardian for Personal Needs and also for Property Management.  The essence of these cases is a determination by the Court that the Alleged Incapacitated Person (AIP) is incapacitated.  In this regard incapacity is not a medical diagnosis but is really a functional analysis as to a person’s ability to handle activities of daily living.  Where someone cannot handle their personal needs or financial matters due to some type of illness or disability and the person fails to appreciate their malady and is at risk of harm, then a Court upon clear and convincing evidence may appoint a Guardian.  While Article 81 provides a list of powers to be exercised by a Guardian, the Court can provide the precise powers which may apply in any particular situation.

A Guardianship case is commenced by the filing of a Petition and a proposed Order to Show Cause in the County where the AIP is located.  The Petition will provide all of the information regarding the AIP’s situation, the need for a Guardian and information about the Petitioner.  Anyone interested in the welfare of an AIP may file a Petition.  The New York Probate Lawyer Blog has published many articles regarding issues concerning Guardianship in New York.

As noted, there are many situations where a Guardianship is needed.  A person may suffer a severe illness or accident or may be experiencing difficulties due to cognitive matters such as dementia.  I have seen many cases where relatively young individuals are suffering from the onset of mental disorders such as schizophrenia.

Article 81 of the New York Mental Hygiene Law (MHL) contains the provisions concerning the appointment of a Guardian for an individual.  There are basically two types of Guardians – a Guardian for Personal Needs and a Guardian for Property Management.  The New York Probate Lawyer Blog has published many articles concerning Guardianships in New York.

In short, MHL Section 81.02 provides that a Guardian may be appointed when it is necessary for the personal needs, property management or safety of an individual.  A finding of incapacity based upon clear and convincing evidence is required.  Incapacity means that a person cannot handle personal or property management functions and cannot appreciate or understand the circumstances surrounding such disability.  As a result, the person is at risk of suffering harm.  The Guardianship Court focuses on a person’s ability to handle activities of daily living.

A Guardianship case in New York is started by the filing of a Petition with the Supreme Court typically in the County where the alleged incapacitated person (“AIP”) is located.  The Guardianship Court will set a hearing date to hear testimony from the parties.  Also, the Court may appoint an attorney to represent the AIP at the hearing.  A Court Evaluator may also be appointed to review all of the facts, interview the AIP, the petitioner and other persons who have relevant information.  The Court Evaluator then prepares a report for the Court with recommendations as to whether a Guardian should be appointed, and, if so, who should be appointed.  This process may take at least a few months.  Temporary Guardianship appointments are sometimes granted in appropriate situations.

Article 81 of the New York Mental Hygiene Law contains the provisions for the appointment of a Guardian.  Guardianship can involve an appointment for personal needs such as health care or living environment.  There is also a Guardianship for property management which concerns a person’s financial affairs.  The New York Probate Lawyer Blog contains many posts relating to Guardianships.

As has been discussed in earlier blogs, MHL Section 81.02 provides that a Guardian may be appointed when or if it is found to be necessary for personal needs or property management and that a person is incapacitated.  This means that the alleged incapacitated person (“AIP”) will suffer harm because they cannot understand and appreciate the consequences and nature of their disability.

Many Guardianship cases are relatively uncomplicated in that the AIP is clearly unable to handle his affairs and that a failure to appointed a Guardian would pose a risk to the personal and/or financial needs of the person.  For example, a person who is paralyzed due to a stroke is in need of assistance.  Nevertheless, there are many cases where litigation and conflict arise.  The imposition of a Guardian requires the presentation of clear and convincing evidence (MHL Section 81.02(b)).

New York Guardianship proceedings are controlled by Article 81 of the Mental Hygiene Law (“MHL”) entitled “Proceedings for Appointment of a Guardian for Personal Needs or Property Management.”  The New York Probate Lawyer Blog has published many articles concerning Guardianship.

The essence of appointing a Guardian concerns a determination that a person is incapacitated.  Incapacity, contrary to its connotation that a person is completely incapable of handling personal needs or property matters, is really a case by case individual determination of abilities.  The inquiry is to examine a person’s functional ability as it relates to handling activities of daily living.  According to MHL 81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment,” incapacity needs to be shown by clear and convincing evidence.  There must be a determination that a person will likely suffer harm because they cannot provide for their needs and that the person cannot appreciate and understand the consequences of their disability.

In a typical case, a petition is filed with the Court.  The Court then sets a date for a hearing.  All close family members are given notice as well as other interested parties.  The alleged incapacitated person usually has a Court-appointed attorney and the Court may appoint a Court Evaluator.  The Evaluator reviews the case, interviews parties, and provides the Court with a report and recommendations.