NYC Guardianship Lawyer

When someone you love can no longer safely manage their health or their money, and they never signed a power of attorney or health care proxy, a court may need to step in and appoint a guardian. This guide explains how guardianship works in New York, what the process looks like, what a guardian must do, and when your family may be able to avoid court entirely.

What is Guardianship

A person appointed by a court to make specific decisions for someone who cannot make those decisions safely on their own.

Who needs one? Usually an adult with dementia, a brain injury, or a serious illness who has no valid planning documents, or a young adult with an intellectual or developmental disability.

How fast does it start? Once the judge signs the order to show cause, the hearing must be scheduled within 28 days.

Does the person lose all their rights? No. They keep every right the court does not specifically give to the guardian.

Can it be avoided? Often, yes, if the person still has capacity to sign a power of attorney and health care proxy.

Signs Your Family May Need a Guardianship

Families usually call us after one of these moments:

A parent with dementia is missing bills, bouncing checks, or falling for scams, and has no power of attorney.
A hospital or rehab facility will not discharge a patient because no one has legal authority to arrange care or sign admission papers.
A bank or brokerage firm refuses to let family members act on a relative’s accounts.
Someone already holds a power of attorney but appears to be misusing it.
A child with an intellectual or developmental disability is about to turn 18, and the parents will lose their automatic legal authority.
A minor child is about to inherit money, life insurance, or a settlement that the child cannot legally manage.

Guardianship Is a Last Resort: Look at These First

A guardianship is a court proceeding that can take away important decision-making rights, so New York courts must use the least restrictive option that will protect the person. Before filing, ask whether any of these are available and working:

Durable power of attorney: lets a trusted agent handle finances.
Health care proxy: lets a trusted agent make medical decisions.
Revocable living trust: lets a successor trustee manage trust assets without court involvement.
Representative payee: manages Social Security or SSI benefits.
Supported decision-making agreement: for people with developmental disabilities, a formal arrangement under New York law where trusted supporters help the person make their own decisions.

The catch: these documents only work if the person still has the capacity to sign them. Once capacity is gone, guardianship is often the only path left. That is why we encourage every family to put these documents in place early. Learn more on our Planning for Incapacity page.

Article 81 vs. Article 17-A: Which Guardianship Applies?

New York has two separate laws for adult guardianship. Choosing the right one matters, because they are filed in different courts and work very differently.

	Article 81 (Mental Hygiene Law)	Article 17-A (Surrogate’s Court Procedure Act)
Who it is for	Any adult whose functional limitations put them at risk of harm: dementia, stroke, brain injury, serious mental illness, or other impairment.	An adult with an intellectual or developmental disability (for example, autism, cerebral palsy, or Down syndrome) that is permanent or likely to continue indefinitely. For a developmental disability, the condition must have begun before age 22.
Court	Supreme Court	Surrogate’s Court
Medical proof	The petitioner must prove incapacity by clear and convincing evidence. The court looks at what the person can and cannot do, not just the diagnosis.	Certification by one physician and one psychologist, or by two physicians, at least one familiar with the care of people with the disability.
Scope of powers	Tailored. The court grants only the powers actually needed, using the least restrictive form of intervention.	Often broad. Courts have called it one of the most restrictive forms of guardianship in New York.
Most common situation	An aging parent who can no longer manage health care or money and never signed a power of attorney or health care proxy.	Parents of a child with a disability who is turning 18 and will legally become an adult.

Some New York courts now require families to show that supported decision-making has been explored before they will grant a 17-A guardianship. If your child is approaching 18, start this conversation a year or more ahead.

What a Guardian Can Be Authorized to Do

The court’s order defines exactly what the guardian may do. A guardian can be given authority over the person, the property, or both.

Guardian of the Person

Makes personal and care decisions, such as:

Choosing where the person lives
Consenting to or refusing medical treatment, including end-of-life decisions when authorized
Arranging home care, rehabilitation, and other services
Encouraging the person’s independence and involving them in decisions as much as possible

Guardian of the Property

Manages money and assets, such as:

Finding, collecting, and protecting assets
Paying bills and managing income, investments, and government benefits
Keeping records and filing reports with the court
Getting court approval, when required, before selling or transferring significant assets

What the person keeps

An incapacitated person keeps every power and right that the court does not give to the guardian. Title to their property stays in their name. A guardianship is not, by itself, proof that the person lacks capacity to make a will, and the court cannot revoke the person’s will during their lifetime.

The Article 81 Process, Step by Step

Petition. A family member, friend, or institution (such as a hospital) files a petition explaining why a guardian is needed, what powers are requested, and what less restrictive options were considered.
Order to show cause. The judge signs an order setting a hearing date, which must be no more than 28 days later.
Service. The person must be personally handed the papers at least 14 days before the hearing, along with a plain-language statement of their rights.
Court evaluator. In most cases the court appoints an independent evaluator who meets the person, talks with family and professionals, and reports to the judge on whether a guardian is needed and who should serve.
Counsel. The person has the right to a lawyer of their choice, and the court may appoint one.
Hearing. The hearing is held in the person’s presence, at the courthouse or at their home if they cannot travel. The person may present evidence and question witnesses. The petitioner must prove the need for a guardian by clear and convincing evidence.
Order and commission. If the court appoints a guardian, the order lists the specific powers granted. The guardian then receives a commission and can begin acting.

In an urgent situation, the court can appoint a temporary guardian while the case is pending.

After Appointment: What a Guardian Must Do

Being appointed is the start of a court-supervised job, not the end of the process. Every Article 81 guardian must:

Complete guardian training and file proof of completion with the initial report.
File an initial report within 90 days of receiving the commission, including an inventory of assets and a care plan, depending on the powers granted.
File an annual report every May, covering the person’s living situation, health, and, for property guardians, a full accounting of money in and out.
Act only within the powers granted. If the guardian needs more or different authority, they must ask the court.

A court examiner reviews each report and can raise questions or flag concerns to the judge.

Practical tip for new guardians

Open a separate guardianship account on day one, never mix the person’s money with your own, and keep every receipt. Most problems we see at the annual report stage come from poor record keeping in the first few months.

Guardianship of Minors

A child under 18 may need a guardian when a parent has died, is seriously ill, or is otherwise unable to act. Guardianship does not end the parent’s legal relationship with the child the way adoption does.

A minor may also need a guardian of the property when the child is entitled to an inheritance, life insurance proceeds, or a settlement. These cases are generally handled in Surrogate’s Court under Article 17 of the Surrogate’s Court Procedure Act, and in some cases in Family Court.

Planning tip: Parents can name a guardian in their will and leave assets to a trust for their children rather than to the children outright. A trust can avoid the need for a court-supervised property guardianship altogether.

Frequently Asked Questions

How long does a guardianship take in New York?

The hearing must be scheduled within 28 days after the judge signs the order to show cause. The full timeline depends on the court’s calendar, whether anyone objects, and how quickly the guardian can qualify after the hearing.

How much does a guardianship cost?

Usually $10,000 or higher, depending on whether the guardianship is contested.

Can someone under guardianship still make a will?

Possibly. A guardianship is not conclusive proof that the person lacks the capacity to make a will. Whether they can sign one depends on their capacity at that time.

What if someone is misusing a power of attorney?

In an Article 81 proceeding, the court can modify or revoke a power of attorney or health care proxy if it was signed while the person was incapacitated or if the agent breached their duties. The court can also require the agent to account for what they did.

Can a guardianship be ended?

Yes. If the person regains capacity, or the court finds the guardianship is no longer needed, the guardian’s powers can be reduced or the guardianship can end.

Do parents need guardianship when their child with a disability turns 18?

Not always. Depending on the young adult’s abilities, a power of attorney, health care proxy, or supported decision-making agreement may be enough. When it is not, a 17-A or Article 81 guardianship may be appropriate.

How Sverdlov Law Can Help

We help families decide whether guardianship is truly necessary, file and pursue guardianship petitions, and guide guardians through their reporting duties. Just as important, we help families plan ahead so they never need a guardianship at all.

Have questions about a guardianship, or want to make sure your family never needs one? Schedule a consultation with Sverdlov Law PLLC.

Legal References

This page provides general information, not legal advice. Reading it does not create an attorney-client relationship.