Adults

Adult guardianships in New York can be a complex and emotionally charged legal process, often necessitated by the need to protect incapacitated individuals who are unable to manage their personal and financial affairs. We are familiar with the intricacies of adult guardianships in New York, and can guide any family through this difficult process.

Understanding Adult Guardianships in New York

Guardianships in New York are established to safeguard the rights and interests of incapacitated adults. These individuals may be suffering from a mental or physical disability, dementia, or any condition that impairs their ability to make informed decisions regarding their personal well-being and financial matters. Under Article 81 the court may grant a guardian personal-needs powers, property-management powers, or both, tailored to what the person cannot do alone. (A separate SCPA Article 17-A guardianship exists for adults with intellectual or developmental disabilities.)

• Guardianship of the Person: This type of guardianship empowers the appointed guardian to make decisions on behalf of the incapacitated person regarding their personal affairs, including medical treatment, living arrangements, and other aspects of daily life. It is essential for ensuring the well-being and safety of the individual.
• Guardianship of the Property: Guardianship of the property focuses on managing the financial affairs of the incapacitated person. The guardian has the authority to handle their assets, income, and expenses. This type of guardianship is critical to protect the individual's financial resources and prevent exploitation.

The Complexity of the Legal Process

To appoint a guardian, the court must find that a guardian is necessary and either that the person agrees or, by clear and convincing evidence, that the person is incapacitated; the powers granted must be the least restrictive form of intervention (MHL 81.02). It is the court's responsibility to determine whether guardianship is indeed necessary for the incapacitated person.

In many cases, the person in need of a guardian has a family member or close friend willing to take on the responsibility. However, the court may appoint a stranger as the guardian if it determines that the individual's interests are not adequately protected by family or friends. This decision can be emotionally distressing for all parties involved, especially when family members disagree on who should be the guardian.

We play a crucial role in adult guardianship cases in New York. We help with the following:

• Petition Preparation: We prepare the necessary legal documents, such as the petition or order to show cause for guardianship, to initiate the legal proceedings.
• Court Appearances: We represent you in court, presenting evidence and arguments to support the appointment of a specific guardian or to contest the appointment of a guardian if it is deemed unnecessary or not in the individual's best interest.
• Compliance with Legal Requirements: We guide you through the legal requirements and ensure that all necessary documentation is filed in a timely and accurate manner.

Adult guardianships in New York involve multifaceted legal proceedings with far-reaching consequences for both the incapacitated individual and the appointed guardian. While the responsibility of being a guardian is significant, we will guide you through the proceeding and advocate for the result that best protects your loved one.

Court evaluator and hearing

The court evaluator interviews the AIP and reports to the court. Counsel may be appointed for the AIP. Evidence focuses on functional abilities. Orders can be tailored and later modified.

Medicaid and property powers

When the AIP needs Medicaid or a property sale, the order must authorize those steps. We draft proposed powers that match the facts and coordinate with Medicaid planning when eligibility is at issue.

Call (212) 518-3868 or request a free consultation. Attorney Advertising.

Working with Schwartsman Law Group

We meet clients in Brooklyn (Avenue Z), Manhattan (590 Madison Avenue, 21st Floor), and Manhasset. Every engagement starts with facts: who needs help, what assets exist, and which court or agency will decide the next step. We are licensed to practice only in New York. Phone consultations and in-office meetings are available; call (212) 518-3868 or request a free consultation.

Documents that usually help at the first meeting

Bring government ID, any existing wills, trusts, powers of attorney, health care proxies, recent account statements, deeds or co-op proprietary leases, and a list of family members with addresses. For probate matters, a certified death certificate speeds filing. For Medicaid matters, multi-year bank history and an explanation of gifts matter. Incomplete packets cause adjournments and agency requests for more information.

Court costs versus legal fees

Surrogate's Court filing fees under SCPA 2402 and other court-set costs (for example court evaluator fees in Article 81) are separate from the firm's professional fees. These pages describe court costs where relevant; they do not quote firm fees. Ask about engagement terms in your free consultation.

What the court needs to see

Article 81 petitions must show functional limitations, available supports, and why less restrictive tools are insufficient; those cases typically involve a court evaluator. Article 17-A petitions instead rely on statutory clinical certifications under SCPA 1750 and 1750-a, plus a best-interest finding. Incomplete medical packages cause adjournments. We coordinate evaluators, notice to interested parties, and proposed orders that match actual needs — personal care, property management, or both.

After appointment

Guardians remain accountable: inventories, annual reports, and court approval for major transactions. We help families stay compliant and petition to expand or limit powers when circumstances change. See our Article 81 guide and Article 17-A guide.

Call (212) 518-3868 or request a free consultation. Licensed in New York only.