Skip to content

Adult Guardianship in New York

Reviewed by DocDraft Legal Team - New York - Last updated October 9, 2026

In New York, a person asks for a guardian of an "alleged incapacitated person" under Mental Hygiene Law Article 81, in the Supreme Court, the Surrogate's Court, or the County Court (section 81.03(a)); in practice that is usually the Supreme Court of the county where the person lives. One kind of guardian covers personal needs and/or property management, with only the powers the court finds necessary. Unless the person agrees to the appointment, the court must find incapacity by clear and convincing evidence, with the burden on the petitioner. The court's self-help page points to the clerk's office in the county where the person lives. When the court signs the order to show cause it appoints a court evaluator, and under section 81.07(b)(3) it may not require the supporting papers to contain medical information.

Find out where you stand in New York

What is happening with the adult you are concerned about?

DocDraft provides document preparation, not legal advice.

How does a court decide an adult needs a guardian in New York?

Under Mental Hygiene Law 81.02, a guardian may be appointed if the person agrees, or if the court finds by clear and convincing evidence, with the burden on the petitioner, that the person is likely to suffer harm because the person is unable to provide for personal needs and/or property management, and cannot adequately understand and appreciate the nature and consequences of that inability.

Which court and which form start an Article 81 case in New York?

The case can be brought in the Supreme Court, the Surrogate's Court, or the County Court under 81.03(a). The court's self-help page lists a petition, an order to show cause, and a request for judicial intervention, and says to get the forms from the clerk's office in the county where the person lives.

Does New York require a doctor's report or an evaluation for guardianship?

New York uses a court evaluator, appointed when the order to show cause is issued (81.09(a)), though if counsel is appointed the court may dispense with the evaluator (81.10(g)). Section 81.07(b)(3) says the court shall not require that supporting papers contain medical information. The evaluator interviews the person and files a written report.

What rights does the person have in a New York guardianship case?

The order to show cause and petition must be personally delivered to the person at least 14 days before the hearing, set no more than 28 days from signing, shorter for good cause. The court appoints counsel in the situations listed in 81.10(c) unless the person has counsel of their own choosing. The hearing is held in the person's presence unless an exception applies.

How New York handles adult guardianship

In New York this process is an Article 81 guardianship under the Mental Hygiene Law, and the person is called the alleged incapacitated person. There is one kind of guardian, who may be appointed for personal needs and/or property management, and the court may grant only the powers necessary and the least restrictive form of intervention (81.02(a)). A case can be brought in the Supreme Court, the Surrogate's Court, or the County Court (81.03(a)). Incapacity must be shown by clear and convincing evidence, with the burden on the petitioner (81.12(a)), and the test looks at functional level and limitations rather than a diagnosis. When the order to show cause is issued, the court appoints a court evaluator (81.09(a)), and the court shall not require that supporting papers contain medical information (81.07(b)(3)). The order and petition must be personally delivered to the person not less than 14 days before the hearing (the court may authorize other service if the person refuses service, and may shorten the period for good cause), and the hearing is set no more than 28 days from signing. Counsel is appointed in the circumstances listed in 81.10(c) unless the person is represented by counsel of their own choosing. The guardian files an initial report within 90 days after the commission issues and an annual report in the month of May.

Relevant Laws

N.Y. Mental Hygiene Law 81.02 and 81.03: Incapacity test and definitions

Sets the two-part functional test, the clear and convincing standard, and the rule that a guardian gets only necessary powers in the least restrictive form. Section 81.03 defines the guardian and the courts that can appoint one.

N.Y. Mental Hygiene Law 81.07 and 81.12: Order to show cause and hearing proof

Section 81.07 covers the order to show cause, the 28-day hearing date, personal delivery at least 14 days before the hearing, and the bar on requiring medical information in supporting papers. Section 81.12 puts the burden on the petitioner by clear and convincing evidence.

N.Y. Mental Hygiene Law 81.09, 81.10 and 81.11: Court evaluator, counsel and hearing

Covers the court evaluator appointed with the order to show cause, the circumstances in which counsel is appointed, and the hearing held in the person's presence.

NY Courts CourtHelp: Guardianship of an Incapacitated Person (Article 81 Guardianship)

The court system's self-help page for Article 81 cases, including how to start a case through the clerk's office in the county where the person lives.

Regional Variances

New York adult guardianship requirements

Court

Supreme Court, Surrogate's Court, or County Court (Mental Hygiene Law 81.03(a)); in practice the Supreme Court of the county where the person lives.

Terms used

Guardian of an alleged incapacitated person under Article 81; one guardian may cover personal needs and/or property management, with only necessary powers (81.02(a)).

Petition form

The court's self-help page lists a petition, an order to show cause and a request for judicial intervention, available from the clerk's office in the county where the person lives. The court's requirements control.

Incapacity standard and proof

Likely to suffer harm because the person is unable to provide for personal needs and/or property management, and cannot adequately understand and appreciate the nature and consequences of that inability (81.02(b)). Clear and convincing evidence, with the burden on the petitioner (81.12(a)). A guardian may also be appointed if the person agrees (81.02(a)(2)).

Medical or evaluator report

Court evaluator appointed at the time the order to show cause is issued (81.09(a)); the court shall not require that supporting papers contain medical information (81.07(b)(3)).

Notice and service

Order to show cause and petition personally delivered to the person not less than 14 days before the hearing; the court may authorize other service if the person has refused to accept service and may shorten the period for good cause. Hearing set no more than 28 days from signing, shorter for good cause (81.07).

Right to counsel

The person may choose counsel (81.10(a)). The court shall appoint counsel unless the person has counsel of their own choosing when the person requests counsel, wishes to contest, does not consent to a move to a nursing home or residential facility, does not consent to major medical or dental treatment, a temporary guardian is requested, the evaluator has a conflict, or the court finds counsel helpful (81.10(c)). The person pays unless indigent (81.10(f)).

Less restrictive alternatives

The court must consider the evaluator's report and the sufficiency and reliability of available resources, such as powers of attorney, health care proxies, trusts and representative payees, and may grant only the least restrictive form of intervention (81.02(a), 81.03(e)). Protective arrangements or single transactions are possible instead (81.16(b)).

Temporary guardian

On a showing of danger in the reasonably foreseeable future to the person's health and well being, or danger of waste, misappropriation, or loss of property; the term does not extend beyond issuance of the commission to a guardian under the article (81.23(a)(1)).

Bond and reports

Court may require or dispense with a bond (81.25(a)). Initial report no later than 90 days after the commission issues (81.30). Annual report in the month of May, or at another time on motion or order of the court (81.31).

Suggested Compliance Checklist

Weigh powers of attorney and other alternatives

Before filing days after starting

Check whether the person has a power of attorney, health care proxy, trust or representative payee, or whether services at home could meet the need. The court must consider these available resources and may grant only the least restrictive form of intervention, so an existing durable power of attorney or health care proxy may change what the court decides.

Document: durable-power-of-attorney

Get the Article 81 papers from the county clerk

Before filing days after starting

Ask the clerk's office in the county where the person lives for the petition, order to show cause and request for judicial intervention listed on the court's self-help page. Ask the clerk which petition form that court requires and follow its requirements.

Prepare the petition without a doctor's certificate

Before filing days after starting

Draft the petition facts around what the person can and cannot do. The court evaluator is appointed when the order to show cause is issued, and the court shall not require that supporting papers contain medical information. The petitioner carries the burden by clear and convincing evidence.

Serve the person and prepare for the hearing

At least 14 days before the hearing days after starting

The order to show cause and petition must be personally delivered to the person not less than 14 days before the hearing, which is set no more than 28 days from signing; the court may shorten periods for good cause. Note that a jury trial of fact issues must be demanded on or before the return date.

Calendar the guardian's reports

90 days after the commission issues; May each year days after starting

The initial report is due no later than 90 days after the commission issues, with a verified inventory if the guardian has property powers and proof of guardian education. The annual report is due in the month of May, or at another time on motion or order of the court. The court decides whether a bond is required.

Frequently Asked Questions

Ready to Draft Your Document?

Get AI-powered legal documents with attorney review included. Plans start at $39.99/mo.

Get Started