New York Guardianship Cases Require Proof of Incapacity

The Guardianship law in New York is found in Article 81 of the Mental Hygiene Law (MHL). The Court may appoint a Guardian if it finds that a person is incapacitated. However, incapacity is not always easy to determine or prove.

New York City Guardianship Attorneys typically review Section 81.02 of the MHL. This section sets forth that any decision by the Court regarding incapacity needs to be made upon clear and convincing evidence. This evidence can be easy or hard to obtain. In some cases where a person has suffered a severe injury or illness it is apparent that the person would probably suffer harm without a Guardian since he cannot provide for his own personal needs or property management. An example would be where a person is unconscious or completely immobilized or unable to engage in any activities of daily living.

Other situations may be problematic regarding proof. Where an alleged incapacitated person is suffering from the effects of some mental disorder or dementia but otherwise is functional to a degree regarding handling his daily affairs, the appointment of a Guardian is more uncertain. In these cases, evidence needs to be presented to the Court to show that the individual is unable to handle his daily affairs and as a result may be harmed.

In Guardianship cases, the Court will appoint a Court Evaluator and also on occasion an attorney to represent the alleged incapacitated person (AIP). The AIP has a right to oppose the petition. After a Guardianship petition is filed, the Court holds a hearing or trial in which it can consider all of the evidence regarding the need for the appointment. The New York Probate Lawyer Blog has published numerous articles concerning Guardianship matters.

Guardianship cases are commenced by filing a petition with the Court that sets forth the facts showing incapacity and the need for the appointment. Evidence that can be helpful may be witness testimony concerning the AIP’s conduct or his inability to handle daily affairs. For example, if the AIP exhibits conditions such as hallucinations or the inability to speak clearly, these are important factors for the Court to consider. Also, if the AIP’s home or apartment is filled with trash or shows the condition of hoarding, these are relevant factors as well.

While it may seem that medical testimony regarding the AIP’s psychological and physical condition would be important for the Court to consider, these matters may not be available for the Court’s review. This is due to the fact that the AIP has a right to privacy and these medical issues are privileged information which may not be presentable to the Judge.

Please call me for a free review of your Guardianship question. Obtaining the appointment of an Article 81 Guardianship can be complicated. I have represented many clients in Guardianship cases throughout the City and State.

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




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