The Commencement of a New York Guardianship Proceeding Can Present Difficult Decisions

Article 81 of the New York Mental Hygiene Law (MHL) provides the substantive and procedural statutes regarding New York Guardianships. As previously talked about in many past posts in the New York Probate Lawyer Blog, a Guardian can be appointed to handle a person’s property management and personal needs when the person is determined by the Court to be incapacitated. However, the determination of incapacity is not always easy. Certainly, when a person has suffered a severe illness or accident and is completely dependent upon others for assistance with activities of daily living (i.e., the person cannot walk, talk or feed him/herself), the need for a Guardian is clear.

On many occasions though a person may be living alone or have some type of part-time care but is exhibiting the effects and deterioration of daily functioning that puts into question their capacity to adequately handle their property or personal affairs without risk to their well-being.

In these situations difficult questions arise on many levels. The first major hurdle may be the emotional quandary of having to bring a Court proceeding against a parent or other close relative to impose a Guardianship. The alleged incapacitated person often has enough cognitive ability to oppose the appointment and may be offended by the introduction of control over their affairs even though such supervision is needed to prevent future harm that may occur without the appointment.

New York Guardianship Lawyers are frequently asked by family members to help them decide the best course of action to take in these situations. Guardianship attorneys know that there is never a simple or textbook answer to these questions since the individuals and circumstances are unique in every situation. Sometimes family members refuse to get involved. In such instances, Adult Protective Services may be contacted and Guardianship proceedings will be commenced by the New York City Department of Social Services.

Once a New York City Guardianship proceeding is started, the next concern may be to actually show by “clear and convincing evidence” (MHL Section 81.02) that the person is, in fact, incapacitated. This may require an actual hearing or trial during which witnesses can testify as to the alleged incapacitated person’s ability to handle activities of daily living and his or her recent actions that reflect capacity. For example, the fact that a person leaves home and gets lost or cannot recall the names of relatives or the location of the banks where his accounts are held all tend to indicate the level of a person’s cognitive abilities.

Manhattan Guardianship proceedings, like those in all other New York Counties, involve the story of an alleged incapacitated person and their ability to attend to their present life’s activities while confronting the possible effects of disease or injury. It is typically the final decision of the Guardianship Court as to what extent, if any, such person needs assistance and, if so, who should be appointed as Guardian to provide the proper supervision.

New York Guardianship Attorney Jules Martin Haas, Esq. has been representing clients in New York Guardianship Proceedings, Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years. If you or someone you know is involved with or has questions about a New York Guardianship or estate, please contact me at (212) 355-2575 or email:, for an initial consultation.

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