Introduction to Article 81
Guardianship is the court proceeding by which one person (the guardian) is appointed to make decisions for another person (the ward) regarding personal, medical, and/or financial matters. In New York, the governing law is Article 81 of the New York Mental Hygiene Law (MHL), entitled “Proceedings for the Appointment of a Guardian for Personal Needs or Property Management”, which went into effect April 1, 1993. It provides a mechanism for the court to assist a person to meet his or her personal and/or financial needs, while at the same time limiting such assistance to the least intrusive means necessary.
The standard for appointment of a guardian under the statute focuses on the decision-making capacity and functional limitations of the person for whom the guardian is sought — not any particular mental or physical medical condition. MHL § 81.02. In fact, New York courts have extended the scope of Article 81 beyond mental conditions such as dementia, mental illness, or mental impairment, to include other forms of impairment, such as blindness and other physical infirmity, drug or alcohol problems, and even gambling addiction.
Common scenarios where a guardianship can help
The following are situations where New York courts have appointed a guardian:
1. Where people seek to make decisions for their aging parent;
2. Where parents seek to make financial and personal decisions for their adult special needs or disabled child;
3. Where a guardian is needed to make decisions for someone who is unable to make responsible decisions because of cognitive impairment;
4. Where emergency medical decisions must be made for an incapacitated patient who does not have advance directives in place;
5. Where an elder is being unlawfully detained by a nursing home or other institution against his or her will, or is being abused or exploited, and emergency powers need to be given to a temporary guardian to act right away.
In one interesting example, a woman had recently won a great deal of money in the lottery and found that she could not help giving her money away to anyone who had a hard-luck story. For instance, she was talking to a friend that said she could really use a new car, so the woman bought her a new car. Although she could not resist this tendency, still the woman realized she needed help controlling the money she had just won.
This story highlights the difference between someone who is an Alleged Incapacitated Person (AIP), as opposed to a Person in Need of Guardian (PING). A person who is in a coma or otherwise allegedly incapacitated would be considered an AIP. Here, the woman who won the lottery was considered a PING — that is, a person who is not incapacitated per se, but who nonetheless needs a guardian. She could actually self-petition to ask the court for the appointment of a property guardian (i.e., someone to make financial decisions only, and not personal or medical decisions) narrowly tailored to control her access to and use of the lottery proceeds.
The “Nuts-and-Bolts” of a Typical Proceeding
A guardianship proceeding begins with the filing of a petition which contains the required pertinent information about the proposed ward (i.e., the person for whom the guardian is sought), his or her assets and income, the proposed ward’s family members and others who are entitled to notice of the proceeding, whether there is a Will and other advance directives, and other information about the circumstances. MHL §81.08.
The specific powers sought are set forth in considerable detail. In the event that this is an emergency, or some other circumstances warrant having immediate intervention, an Order to Show Cause asking for the appointment of a temporary guardian with particular immediate powers would be included. MHL §81.23.
A good example of this would be where an immediate decision has to be made as to whether or not surgery or some other urgent medical procedure should be performed on a comatose patient where no health care proxy is in place. This would be particularly true where the family members disagree on how to proceed. The guardianship court would appoint a temporary or special guardian who would investigate, talk to the doctors, and report to the court with a recommendation.
While it would appear to the layperson that the test for an Article 81 guardianship would require a medical diagnosis, actually the test is a functional one: The court must determine (1) if the person has functional limitations, and (2) whether he or she can understand the nature and consequences of those limitations, and (3) whether it is likely that the person will suffer harm if a guardian is not appointed. In other words, the observation of erratic or questionable behavior is more to the point in these proceedings than a medical diagnosis.
The court will often appoint a Court Evaluator to act as the “eyes and ears of the court” — to investigate the circumstances, interview people, and report to the court. MHL §81.09.
The matter proceeds to a hearing at which testimony is taken. MHL §81.11. These proceedings can also be contested, with family members disagreeing as to who should be the guardian and what steps should actually be taken. The person for whom the guardianship is brought can even object to the appointment of a guardian, and can be represented by an attorney (court-appointed or of their own choosing). MHL §81.10.
Seeking The Least Restrictive Means
In enacting Article 81 of the Mental Hygiene Law, the intent of the legislature was to create a means of protecting individuals using the least restrictive means possible. In addition, the law gives the court the authority to tailor a guardianship to the ward’s needs. Article 81 requires the court to consider alternatives to the appointment of a guardian, such as visiting nurses, home health aides, adult day care, and trusts, and allows the court to fashion remedies that may or may not include appointment of a guardian. See, e.g. MHL §81.01.
Article 81 is a versatile remedy that can provide useful or even life-saving solutions to a wide variety of situations. Because it is a complex proceeding with serious implications, and it requires a court hearing, it is imperative for anyone considering a guardianship to consult with an experienced elder law attorney knowledgeable in this area of the law.
 In some states, the proceeding is called conservatorship.
 In addition to Article 81 of the Mental Hygiene Law, which has arguably the broadest application and flexibility in such matters, other mechanisms exist. The main example is Article 17-A of the Surrogates Court Procedure Act. Originally designed for mentally retarded individuals who were newly discharged from mental institutions and needed a safety net, the law was later amended to include developmentally disabled individuals, and specifically those with cerebral palsy, autism, epilepsy, traumatic head injury and other neurological disorders. The disability must have originated before the age of 22 (except that no such age of origination applies to traumatic head injury). By contrast with Article 81, Article 17-A expressly requires that the mental retardation or developmental disability must be medically certified. Also, in the more extreme cases where a person may be a danger of harm to himself or others, a proceeding exists under Article 9 of the Mental Hygiene Law for involuntary commitment of the individual.