Becoming a Guardian (Court Process) Video | Transcript
An Article 81 guardian can only be appointed by a judge after court proceedings. You can find more information about what guardianship is (and is not) here: What is Guardianship. Guardianship is a serious matter and should only be pursued as a last resort. If you have not yet explored other options, please see our pages on Alternatives to Guardianship and Family, Friend, and Caregiver Resources.
How to Start a Case
Who Can Start an Article 81 Guardianship Proceeding?
Anyone interested with the wellbeing of a person can start a case—even if you do not intend to be the person’s guardian. This includes: family members, friends, social service agencies and hospitals. You can even start a guardianship case for yourself.
Some key terms: You can find a full list of commonly-used terms in the Glossary
- Petitioner: The person/entity who starts the guardianship case
- Alleged Incapacitated Person (AIP): This is the person who the petitioner believes needs a guardian. Sometimes referred to as “The Respondent.”
- Interested Parties: A person or organization that is close to the AIP or has interest in the outcome. They do not have an official role in the court proceedings, but are entitled to notice of the status.
- Court Evaluator: A person appointed by the court to investigate a guardianship case. They file a report with their recommendations which the judge uses to help make a decision.
To Start an Article 81 Guardianship Case:
You must file certain documents including a Verified Petition, Order to Show Cause (OSC), and Request for Judicial Intervention (RJI) and any documents supporting your request.
- In what county do I start the case? The case should generally be filed in the county where the AIP lives or is physically present (this may include a facility like a nursing home).
- How to reach the court: If you are in New York City, reach out to the clerk's office in your county’s Supreme Court. Outside of NYC, reach out to the clerk’s office at your Supreme or County Court. You can find contact information for all new york state courts on the court website.
- How to file: Different courts and counties have different requirements. Contact the court to find out your options of how file electronically or with paper documents. The petitioner may be able to file the petition, OSC, and RJI over the internet using NYSCEF, the New York State Courts Electronic Filing system. NYSCEF has specific information for people who do not have an attorney.
- Request for Judicial Intervention (RJI): The clerk uses this document to assign a judge to the case. You can find more information and the sample form here: Request for Judicial Intervention (RJI) Form & Info.
- Purchase an Index Number: The person starting the case (the petitioner) must purchase an index number. This will appear on all court forms and will help the court to identify the case going forward.
- Fees and fee waiver: The RJI and Index number cost money. If you cannot afford the fee, reach out to your local court to ask about a fee waiver. For more information, see Filing Fees and Fee Waiver.
CUNY Law School’s Guide to Becoming a New York Guardian Without a Lawyer gives examples of documents. Remember that these are examples and you should always contact the court to make sure your documents align with the rules of that court.
Supporting Documents: When you file your documents, you can also include anything that supports your petition, such as overdue bills, health information, or police reports.
Verified Petition
Document requesting that a guardian be appointed for the alleged incapacitated person (AIP). It states why a guardian is necessary. Full requirements are in Section 81.08 of NYS’s Mental Hygiene Law. Some information the Petition must include:
Order to Show Cause (OSC)
This document summarizes the requests made in the petition and asks the judge to set a time and date for a hearing. It must include specific language and leave space for the judge to appoint a court evaluator and/or an attorney for the AIP.
Even though, if signed, the OSC, becomes an order from the judge, the petitioner must write and file it. The judge can change any language and will fill in missing information before signing it.
Emergency requests: The Petitioner can ask for immediate actions in the order to show cause. See Section 81.23 of NYS’s Mental Hygiene Law for more information.
- Injunction/Temporary Restraining Order: May be used to ask the judge to stop someone from who is transferring property or acting in a way that endangers the health, safety or welfare of the person. Examples include (pause) a pending eviction or, prevent active financial exploitation in a bank account. This can be requested in the OSC or at any time during the guardianship proceedings.
- Temporary Guardians: A temporary guardian may be needed to address immediate risks such as time-sensitive medical decisions or utilities that are about to shut off. The petitioner can request a temporary guardian in the OSC, with information about the requestion in the petition, or any time before a permanent guardian is appointed. You must show “danger in the foreseeable future” to have a temporary guardian appointed.
- Note: Talk to the court where the case will take place about specific procedural requirements for these emergency requests.
What Happens After All Documents Are Filed?
A judge will decide if they have all the information needed to start a case. If so, they will sign the OSC and add the following information:
- Date, time, location of the hearing (may be held in-person or virtually)
- Name and contact information of the Court Evaluator, if appointed
- Name and contact information of AIP’s attorney, if appointed
- Who has to be notified and how—this is called service
How will I know if a judge signed the OSC? If you do not hear from the court, you should call the clerk and asked if a signed copy of the OSC is ready. You may have to pick it up in person, or it might be emailed.
Service: Delivering legal papers is called “service of process”. The law says that legal papers have to be “served” (delivered) the right way. Every adult and organization listed in the case must be served in the way that is listed in the signed OSC. Get more information about serving documents here. A court proceeding cannot continue until you let the court know everyone has either been served or an attempt has been made to serve them. You do this by filing an affidavit of service. (Sample affidavit of service)
Read the OSC carefully for the judge’s instructions on how to serve the court papers. Here is a common example: A copy of the OSC and petition will be hand-delivered (“personal service”) to the AIP at least fourteen days before the hearing and delivered by mail to the Court Evaluator and AIP’s attorney, if there is one, within three days after appointment. Any Interested Party will be mailed just the OSC and a Notice of Proceeding (see below).
Notice of Proceeding: A notice of proceeding is a document giving Interested Parties information including the time and place of the hearing. It is usually sent with the OSC to any interested parties.
Court Evaluator: If a court evaluator is appointed, they will investigate the information that is in the filed documents. This could include interviews with interested parties, doctors, social workers, and nursing home employees, reviewing documents, and meeting with the AIP. They will file a report with the court summarizing what they learned and their recommendations.
Adjournments: The hearing date may be changed (adjourned) “for good cause shown.” Some common adjournment examples: the Court Evaluator need more time to investigate the case, the petitioner’s witnesses are not available on the original hearing date, or the hearing takes place but cannot finish in the time and is adjourned to another date to continue.
The Hearing
What to Expect: At the hearing, the Petitioner will have to present their evidence. The evidence will support the information in the Petition, explain why the person needs a guardian, and why the guardian should have the powers requested. It is a good idea to review all filed papers before the hearing and be able to answer any questions about the information in it. You can bring as documentation that supports what was in the petition as well. The Petitioner has to prove their case by “clear and convincing evidence.” This means evidence that proves what is in the petition is highly or substantially probable to be true.
Witnesses: A common way to present evidence is to have people who know the AIP testify (speak). They will be referred to as witnesses. These are often family members, social workers, friends, or other people who know the AIP. Witnesses will be sworn in so they are under oath.
- Witnesses are asked to testify in a question and answer format. The Petitioner will ask questions about what they want the judge to know and the witnesses answer.
- Once the petitioner is done asking questions, the AIP’s attorney, and sometimes the judge and other parties, will be able to ask questions related to what the witness has said.
- If the Petitioner wants to testify, a judge may swear them in and ask them questions or ask them to speak freely. This process depends on the judge presiding over the case. Even if the Petitioner is not officially testifying, they may be asked some questions.
AIP at the hearing: The Court will want to hear from the AIP and observe them, if possible. They will listen to and consider the wishes and perspective of the AIP. If the AIP is opposing and has an attorney, they may present their own information and witnesses showing why the AIP does not need a guardian. Sometimes, the Court may schedule a hearing where the AIP resides to make it easier for them to participate. The use of virtual hearings can make it easier for an AIP who cannot easily travel to participate. The appearance of an AIP at the hearing may be waived (excused) by the Court if it is determined the AIP cannot contribute to the hearing in a meaningful way, such as being unable to communicate in any manner and unable to understand the proceedings.
Court Evaluator: If there is a Court Evaluator, they may give their recommendations out loud during the hearing. This can give others the opportunity to challenge any information presented and ask questions.
Adjournments: The hearing may not always be completed on the first day and may need to be continued on (adjourned to) another date to finish.
Accommodations for disabilities: On the court website, you can find information about accommodations including wheelchair accessibility and services/modifications for people with hearing or visual impairments. Here is more information on requesting an accommodation. Use the local ADA (Ajmericans with Disabilities Act) directory to find county-specific information, or reach the state ADA office at [email protected] or (212) 428-2760.
Language Interpreters: The court system has interpreters available in over 100 languages. If you need an interpreter, let the court know as early as possible. This will help prevent delays. You can request an interpreter through the clerk’s office or sometimes directly with the staff of the judge presiding over the case. If you do not know how to reach the court, you may call the Office of Language Access at (646) 386-5670.
Note on Consenting AIPs: If an AIP has the capacity to consent, and wants a guardian, they can consent. If a judge accepts the consent of the AIP and appoints a guardian, the person is considered a Person in Need of a Guardian (PING). The PING can make a request to end the guardianship at any time by taking back their consent. For more information on ending guardianship, see Ending and Modifying Guardianship.
The Decision/After the Hearing
After the hearing, the judge will either appoint a guardian or dismiss the petition. If the court finds that the AIP is incapacitated, and that a guardian is necessary, the judge will officially deem the AIP an Incapacitated Person, or IP for short. They will appoint and name a guardian, list the guardian’s powers, and say how long the guardianship will last. If the AIP has the capacity to consent and consented to the guardianship, a judge could instead determine that the AIP is a PING (Person in Need of a Guardian).
Who is the Guardian? The guardian appointed may not be the guardian nominated in the Petition. The judge will decide who is most appropriate to be the guardian. The court will decide if a guardian should be appointed to make decisions about personal needs, property, or both. Sometimes two guardians can be appointed, one for personal needs and one for property.
What Powers will the guardian have? The powers of a guardian will be related to the specific needs of the person. Some common powers include choosing a safe place to live, deciding who will provide care, making medical decisions, paying bills, managing income and assets, and entering into contracts.
Decision Process: After the hearing, the court will often give their decision out loud. Sometimes the judge puts their decision in writing at a later date. Depending on the court, the judge will sometimes ask the Petitioner to write the order and submit it to the Court for signing. The Court should instruct you on this process. It often includes sending your drafted order to other parties before you send it to the court with a “notice of settlement,” giving the parties 14 days to object to anything in the order. Some courts might write the order themselves and some might give you a partially written order to fill in the blanks. Page 12 of the CUNY Guide to Becoming a New York Guardian Without a Lawyer gives more details on this process.
What is in the Order and Judgement? The Order and Judgement will name the guardian, their powers, the length of the guardianship and explain, in detail, the duties and responsibilities of the guardian. This includes drafting and filing an initial and annual reports. It will also name a Court examiner. Ask the Court for a sample order.
Court Examiner: The judge will also appoint a Court Examiner who will review the guardian’s reports in the future and make sure the guardian is doing what they need to do. Note: The Court Examiner is a different role than the Court Evaluator.
What does a Guardian do Next? Once appointed, guardians must finish a process called qualification before they begin acting as guardian. This includes filing documents with the clerk’s office and taking a course on guardianship duties. A judge may order the guardian to obtain a bond. A bond is like an insurance policy that protects the person against any errors made by the guardian.
You can find information about training and support programs for appointed guardians at: Information for Appointed Guardians