Contested Article 81 Guardianships in New York

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{Read in 7 Minutes} As a Trust and Estates attorney, most of my Court appearances are in Surrogate’s Court. However, there are certain proceedings that I handle that the Surrogate’s Court does not hear. Most notably, are Adult Guardianship proceedings. I’d like to spend some time talking about that here.

Every now and then an adult will lose the ability to make their own personal and financial decisions. Perhaps it might be the result of dementia or Alzheimer’s disease, or perhaps it is the result of a major medical event such as a stroke. It might even be the result of an accident that leads to some sort of traumatic brain injury.

When an adult loses capacity, their loved ones need to make some decisions — specifically, what happens if the person can no longer manage their own personal care (make doctor appointments, fill prescriptions, make decisions about where to live, etc.) and/or no longer manage their own finances (pay their bills, file tax returns, and make decisions about their financial future)? In this situation, it’s always ideal if the person planned ahead.

A big part of my practice is writing advance directives for people to address just this contingency. If the person has a Power of Attorney, a Health Care Proxy, and a Living Will, they already selected the person or persons who will act on their behalf in this circumstance. Sometimes, even without some of these documents, there may be other safeguards in place. For example, the person may have addressed this contingency by setting up a joint bank account to assist in financial management or paying their bills. But in a situation where none of these safeguards exist, a person may apply for guardianship.

Guardianship can be a great tool in protecting a person’s personal and financial interests. However, what happens if there is a dispute among that person’s family (or family of choice) about who should be the Guardian? What if there are allegations that somebody should be excluded from serving as Guardian because they engaged in prior self-interested or financially abusive transactions with the person who is the subject of this proceeding. Can the Court consider these allegations?

Absolutely, yes! A Guardianship proceeding is one of the most personal proceedings in the law. A Guardianship Court is looking at the individual person’s limitations and trying very hard to craft a guardianship that is narrowly tailored to the person’s needs and preferences. Ensuring the appointment of the proper Guardian is tantamount among the concerns of the Court.

Courts are always interested in hearing what a person’s family or friends think about the proposed Guardian, including concerns about the propriety of their appointment.

If you get notice of a pending guardianship proceeding in New York City, and you have concerns, what are your options?

1. Contact the Court Evaluator.

A Court Evaluator is an independent third-party neutral that the court appoints in Adult Guardianship proceedings. These people, often referred to as “the eyes and ears of the Court,” are tasked with making an independent investigation, interviewing the person, and the family, and making a recommendation to the Court about what to do in that proceeding.

Reaching out to the Court Evaluator allows you to raise any concerns that you have which they can relay back to the Court for consideration. This is a good idea even if you, yourself, don’t want to be the Guardian. For example, calling the Court Evaluator and saying, “I’m not able to take on the work of being a Guardian, but I have concerns about the proposed Guardian, and here’s why,” is certainly something that’s very acceptable.

2. File a Cross-Petition.

Usually, the person asking to be appointed the Guardian is the Petitioner in the Action. Anyone who thinks that the Court should appoint themselves (or someone else) instead of the person petitioning, may file a Cross-Petition. That Cross-Petition would allege any facts that the Court should know about, and ask for alternate relief; specifically, that the subject of the proceeding may not need a Guardian for various reasons, or that if the Court does appoint a guardian, the Court should appoint someone other than the original nominee.

A Cross-Petition is a legal document, so it may be a good idea to have an attorney draft it for you. If you are not in a position to do so, or if you’re not in a position to afford an attorney, you should contact the local guardianship department and see if they have fill-in-the-blank forms to help you.

3. Contact the attorney for the subject of the proceeding.

When the Court starts the proceeding, the Court may also appoint an attorney to represent the subject of the proceeding. That attorney’s name would appear in the Order to Show Cause that the Court signs to start the proceeding and will have that attorney’s contact information. If the Court has done this, you can contact that attorney and give any information of which you think they should be aware. Just remember, they are not your attorney, and will be primarily concerned with protecting their client, not necessarily you.

4. Show up at the hearing.

The Order to Show Cause will give the time, date, and location of the guardianship hearing. You have the opportunity to show up, with or without an attorney. If you are unable to afford an attorney, show up at the hearing, and ask the Judge to be heard.

Given what’s at stake in an Adult Guardianship proceeding, and the importance of finding the appropriate person to serve, Courts are always interested in hearing people’s concerns. If you have some concerns, consider exploring one of the options above.

For more information on this topic, please contact me.

Thomas Sciacca


Thomas Sciacca
(212) 495-0317