New York Guardianship May Not Be Needed If There Are Least Restrictive Alternatives

A New York Guardianship proceeding under Article 81 of the Mental Hygiene Law (“MHL”) typically requires that the Court find the alleged incapacitated person (“AIP”) to be incapacitated. The focus of the Court is on the functional abilities of the AIP and the manner in which the AIP can handle activities of daily living without assistance. These activities include the ability to feed oneself or handle necessary personal hygiene.

The Guardianship Court will also focus upon whether a person has advanced directives or alternative means by which to accommodate a disability. For example, as part of the creation of an Estate Plan, a person may have put into place a Power of Attorney, a Living Will, a Health Care Proxy or a Living Trust. These papers provide a means by which a person can have their personal needs and property management attended to after they no longer have the capacity to do so by themselves. There may also be situations where caretakers such as family members or nursing professionals may be in place to care for and monitor a person’s ongoing needs despite an apparent disability.The Guardianship statutes direct that the Court impose only the least restrictive measures that are needed to ensure the safety of a person. When alternative resources are found to be in place, a Court may refuse to impose the more restrictive conditions that result from the appointment of a Guardian.

Sometimes the Guardianship process is confusing because of the nature of the statutory scheme that is being used. Article 81 of the MHL refers to the proceedings for the appointment of a Guardian for Personal Needs or Property Management. The inquiry relates to the incapacity of the AIP. There is also a statutory method for the appointment of a Guardian under Article 17-A of the Surrogate’s Court Procedure Act (SCPA). This article provides for the appointment of a Guardian for persons who are mentally retarded or developmentally disabled. However, the same concepts regarding the imposition of the least restrictive means of control seem applicable under the Guardianship provisions of both the MHL and the SCPA.

This approach to Guardianship appointment was recently seen in a decision by Brooklyn Surrogate Margarita Lopez Torres dated October 28, 2015 in a case entitled Guardian for D.D.  In D.D. a proceeding was filed to have a Guardian appointed pursuant to Article 17-A of the SCPA.  The Court found that D.D., while suffering from an intellectual disability, was able to function adequately due to  family support and the ability to participate in various independent functions and decision making.

Thus, the Court found that the appointment of a Guardian was not the least restrictive means to meet D.D.’s needs and that the appointment of a Guardian was not shown to be in D.D.’s best interest. The Court denied the petition for Guardianship.

I have represented many individuals in connection with Guardianship proceedings.  These proceedings can be very complex and require the filing of a Court petition and a hearing by the Guardianship Judge.  If you have any questions regarding a Guardianship, please call me now for a free review.

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 Nassau 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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