Guardianships

When a parent, spouse, or adult child can no longer manage money, medical decisions, or daily care, families often hear that they "need a guardianship." Sometimes that is true. Often it is not, or not yet. New York has two separate guardianship systems with different standards, and the law expects families to look first at tools that leave more decisions in the person's own hands. Schwartsman Law Group helps New York families figure out which path fits, and when a guardianship is the right answer, we prepare and present the petition.

We represent clients throughout New York City and Long Island, including Brooklyn, Manhattan, Queens, the Bronx, Staten Island, Nassau, and Suffolk. To talk through your family's situation, call (212) 518-3868 or schedule a free consultation.

Two Kinds of Guardianship in New York

New York guardianships generally fall under one of two statutes:

• Article 81 of the Mental Hygiene Law (MHL) covers adults whose functional limitations mean that, under MHL 81.02, an appointment is necessary and the person either agrees or is found incapacitated. Families often consider it for older adults with dementia, people recovering from a stroke or serious injury, and others whose abilities have changed during adulthood.
• Article 17-A of the Surrogate's Court Procedure Act (SCPA) covers individuals with conditions covered by SCPA 1750 and 1750-a. Families often look at it as a child with a qualifying disability approaches adulthood and parents want to keep a legal role in decisions.

The two systems are not interchangeable. They have different eligibility rules and different kinds of proof. Choosing the wrong one can cost time and money, and can leave a family with a court order that does not match the person's real needs.

Feature	Article 81 (MHL)	Article 17-A (SCPA)
Who it covers	Adults with functional limitations affecting guardianship under MHL Article 81	Individuals with conditions covered by SCPA 1750 and 1750-a
Key standard	Appointment must be necessary, and the person either agrees or is found incapacitated by clear and convincing evidence	Certification by two professionals: a physician and a psychologist, or two physicians
Timing of the condition	Focus is on present functional limitations	For SCPA 1750-a conditions, onset before age 22, except traumatic brain injury
Role of existing documents	Court considers available resources, expressly including POAs and health care proxies, and the least restrictive form of intervention	Families should still weigh whether less-restrictive tools would meet the person's needs

Article 81 Guardianship: Necessity, Incapacity, and the Least Restrictive Path

Article 81 is built around a simple idea: a court should step in only as far as it has to. Under MHL 81.02, a court may appoint a guardian when two things are true:

• The appointment is necessary, taking into account the person's functional limitations and available resources; and
• The person either agrees to the appointment or is incapacitated. A finding of incapacity must rest on clear and convincing evidence.

Incapacity under Article 81 is not simply a diagnosis. The statute looks at functional limitations, meaning what the person can and cannot actually do in daily life. Two people with the same diagnosis can be in very different positions, and a petition has to show the specific limitations, not just a medical label.

Available resources: why a POA or health care proxy matters

Even when someone has real limitations, a guardian may not be necessary. MHL 81.03(e) defines "available resources" to expressly include powers of attorney, health care proxies, trusts, and representative and protective payees. In deciding whether an appointment is necessary, the court takes these resources into account.

In practice, this means a valid durable power of attorney and health care proxy, signed while the person could still execute the documents, can sometimes make an Article 81 proceeding unnecessary. A trust that already holds the person's assets, or a representative payee who already receives benefits, may also meet part of the need. If those tools exist and are working, a guardianship may not be needed at all, or may only need to fill a narrow gap.

The reverse is also true. If the existing documents do not reach the problem the family faces, or if there is a real concern about how an agent is acting, a guardianship may still be needed even though a power of attorney exists.

The least restrictive form of intervention

MHL 81.03(d) defines the least restrictive form of intervention. The court's order should not be an all-or-nothing transfer of rights when a narrower set of powers will do.

For families, this shapes how a petition should be written. A strong Article 81 petition explains specifically what the person can no longer do, why existing resources do not solve the problem, and which powers the proposed guardian actually needs. Asking for more than the facts support makes a petition harder to win and harder on the person at its center.

Article 17-A Guardianship Under SCPA 1750 and 1750-a

Article 17-A is a separate track under SCPA 1750 and 1750-a. Parents often first consider it when a child with an intellectual or developmental disability is approaching adulthood and the family wants a clear legal basis to stay involved in medical, financial, and daily-life decisions.

Certification by two professionals

A 17-A petition depends on professional certification. The statute requires certification by two professionals: either a physician and a psychologist, or two physicians. Gathering current, complete certifications that track the statute's requirements is often the step that most affects how smoothly a 17-A petition moves.

Onset before age 22, with a traumatic brain injury exception

For the conditions covered by SCPA 1750-a, the condition must have begun before the person turned 22. Traumatic brain injury is the exception to that age-of-onset rule. If a condition began later in adulthood and is not a traumatic brain injury, Article 81, not 17-A, is usually the framework to evaluate.

Simpler is not the same as automatic

Article 17-A is sometimes described as more streamlined than Article 81, but a 17-A petition is not a formality. The petition still has to be supported, the certifications have to fit the statute, and the family should think carefully about whether guardianship is the right level of intervention for this particular person, or whether a power of attorney, health care proxy, or trust signed by a young adult who can sign could meet the need.

Less-Restrictive Alternatives to Guardianship

Because New York law favors the least restrictive approach, we start every guardianship consultation by asking what already exists and what could still be put in place. Options can include:

Durable power of attorney (GOL 5-1501B)

A power of attorney lets a person name an agent to handle financial matters. The current statutory requirements under General Obligations Law 5-1501B took effect October 25, 2023. The power of attorney must be printed in at least 12-point type, signed and dated by the principal, acknowledged before a notary, and signed by two witnesses. The notary may serve as one of the two witnesses. The agent must also sign, and that signature must be acknowledged.

A power of attorney has to be signed while the principal can still execute the form. That is why we encourage families to address it early, before a condition progresses.

Health care proxy (PHL 2981)

A health care proxy names an agent to make medical decisions if the person cannot. Under Public Health Law 2981, as amended effective March 21, 2025, the proxy must be signed in the presence of two adult witnesses, and the person named as agent may not serve as a witness. The statute also permits remote witnessing by audio-video technology under section 2981(2-a).

Trusts and benefits arrangements

A trust funded while the person has capacity can let a trustee manage assets without court involvement. A representative or protective payee can manage government benefits. Both are named in MHL 81.03(e) as available resources. For a person with a disability, a supplemental needs trust can also play a role. Under Social Services Law 366(2)(b)(2)(iii), a first-party trust for a person under 65 may be created by the individual, a parent, a grandparent, a guardian, or a court, and must include Medicaid payback; the statute also recognizes pooled trusts managed by nonprofit organizations. Our special needs and disability planning team works with families on these arrangements.

When these tools are already in place and working, a guardianship may be avoidable. When they are missing and the person can no longer execute those documents, a guardianship petition may be the path forward to give someone legal authority to act.

How a Guardianship Matter Proceeds With Our Firm

Every case is different, but our work on a guardianship matter usually moves through these stages:

• Assessment. We learn about the person's condition, daily functioning, finances, existing documents, and family dynamics. We review any power of attorney, health care proxy, or trust to see whether it already covers the need.
• Choosing the framework. We evaluate whether Article 81, Article 17-A, or a non-court alternative fits. For 17-A, we look closely at the qualifying condition and the age-of-onset rule. For Article 81, we focus on specific functional limitations and necessity.
• Building the evidence. For a 17-A petition, we coordinate the two required professional certifications. For an Article 81 petition, we gather the medical records, observations, and financial information needed to meet the clear and convincing evidence standard and to show why available resources are not enough.
• Drafting a tailored petition. We request only the powers the facts support, consistent with the least restrictive approach, and propose a guardian who is able and willing to serve.
• Court proceedings. We present the petition, respond to questions or objections, and work toward an order that fits the person's actual needs.
• After appointment. We help guardians understand what the order authorizes and what it requires of them.

Some guardianship matters are cooperative. Others involve disagreements among siblings, concerns about how an agent has handled money, or questions about where a parent should live. When a dispute becomes litigation, we coordinate with our trusts and estates litigation practice.

Guardianship, Medicaid, and Long-Term Care

Guardianship questions often come up at the same time as a nursing home admission or a need for home care. Medicaid has its own rules that run alongside any guardianship. For nursing home (institutional) Medicaid, transfers are reviewed under a 60-month look-back. A proposed 30-month look-back for community-based and home care has not taken effect. Our Medicaid planning attorneys can review how a guardianship and a Medicaid application fit together.

Learn More About Each Type of Guardianship

For a deeper look at the standards and steps, read our guides:

• Article 81 Guardianship in New York
• Article 17-A Guardianship in New York

If you are planning ahead rather than responding to a crisis, our estate planning page explains how powers of attorney, health care proxies, and trusts can reduce the chance that a court will ever need to be involved.

Talk With a New York Guardianship Attorney

Whether you are a parent preparing for a child's 18th birthday, an adult child worried about a parent's memory, or a relative concerned about how someone's money is being handled, it helps to understand your options before anything is filed. Schwartsman Law Group's attorneys are licensed in New York and focus on New York guardianship, trusts and estates, and elder law matters.

Call (212) 518-3868 or request a free consultation to discuss whether a guardianship, or a less-restrictive alternative, is right for your family.