New York Adult Guardianship Petition + Order and Judgment Package (MHL Article 81 / SCPA Article 17-A)

NEW YORK ADULT GUARDIANSHIP PETITION + ORDER AND JUDGMENT PACKAGE

PART 0 — PATHWAY SELECTION AND PRE-PETITION CHECKLIST

0.1 Pathway Selection

☐ MHL Article 81 (Supreme Court / County Court) — adult with diminished functional capacity from any cause (dementia, stroke, brain injury, mental illness, substance abuse). Tailored, least-restrictive powers. Hearing required. Court evaluator appointed; counsel appointed under MHL § 81.10 when required or directed. Default pathway for most adult guardianship matters.

☐ SCPA Article 17-A (Surrogate's Court) — adult with intellectual disability, developmental disability, or traumatic brain injury, supported by certifications from two physicians (or one physician and one psychologist). All-or-nothing plenary guardianship; no required hearing; no mandatory court evaluator. Increasingly disfavored by Surrogates for capable adults; courts may require Article 81 instead (see Matter of Chaim A.K.).

☐ Health Care Decisions under SCPA § 1750-b — surrogate health care decision-making for a person with an intellectual/developmental disability

0.2 Less Restrictive Alternatives Review (MHL § 81.02(a)(2); Surrogate Glen jurisprudence under 17-A)

☐ Existing Durable Power of Attorney (GOL § 5-1501 et seq.) reviewed
☐ Health Care Proxy (PHL Article 29-C) reviewed
☐ Living Will / Advance Directive reviewed
☐ Representative Payee for Social Security
☐ Supported Decision-Making Agreement (NY SDMA Act, MHL Article 82; ch. 481 of 2022, effective upon adoption of OPWDD regulations)
☐ Joint accounts, in-trust-for, or other informal arrangements
☐ Trusts (revocable, supplemental needs, pooled SNT)
☐ Community-based supports through OPWDD or local social services
☐ Capacity to execute new advance planning documents — INSUFFICIENT

0.3 Pre-Filing Diligence

☐ Specific functional limitations identified and documented with concrete examples
☐ Specific dangers / risks to AIP identified
☐ Powers requested are narrowly tailored to functional limitations (MHL § 81.02(a)(2))
☐ Bond amount estimated under MHL § 81.25
☐ Proposed guardian eligibility under MHL § 81.19 reviewed
☐ Court evaluator anticipated under MHL § 81.09
☐ Counsel-appointment grounds and any request for counsel reviewed under MHL § 81.10
☐ Order to Show Cause drafted to accompany Petition (MHL § 81.07)
☐ Service of process plan: personal service on AIP at least 14 days before hearing; notice to interested persons

PART 1 — MHL ARTICLE 81 PATHWAY: PETITION

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF [____________________________]

1. PETITIONER (MHL § 81.06)

Petitioner [FULL NAME OF PETITIONER], residing at [________________________________], is authorized to commence this proceeding under MHL § 81.06 as:

☐ The person alleged to be incapacitated
☐ Presumptive distributee of the AIP
☐ Executor or administrator of estate in which AIP has interest
☐ Trustee of trust in which AIP has interest
☐ Person with whom AIP resides
☐ Person otherwise concerned with welfare of AIP, including corporation or public agency, social services official
☐ Chief executive officer of facility in which AIP resides
☐ Other [____________________________]

2. ALLEGED INCAPACITATED PERSON ("AIP") (MHL § 81.08(a))

3. INTERESTED PERSONS ENTITLED TO NOTICE (MHL § 81.07(g))

4. FUNCTIONAL LIMITATIONS (MHL § 81.02(b), § 81.08(a)(6)) — REQUIRED SPECIFICITY

Petitioner alleges the AIP suffers from the following functional limitations supported by clear and convincing evidence:

Personal Needs (Activities of Daily Living):

Property Management:

5. INABILITY TO UNDERSTAND AND APPRECIATE CONSEQUENCES (MHL § 81.02(b)(2))

AIP is likely to suffer harm because (i) AIP is unable to provide for personal needs and/or property management, and (ii) AIP cannot adequately understand and appreciate the nature and consequences of such inability:

[________________________________]
[________________________________]
[________________________________]

6. AVAILABLE RESOURCES AND LESS RESTRICTIVE ALTERNATIVES (MHL § 81.02(a)(2))

7. POWERS REQUESTED — TAILORED TO LIMITATIONS (MHL §§ 81.21, 81.22)

Personal Needs Powers Requested:

☐ Determine where AIP resides (within state)
☐ Consent to or refuse routine medical, dental, mental health treatment
☐ Consent to major medical treatment (subject to MHL § 81.22(a)(8))
☐ Apply for government benefits
☐ Choose social environment and activities
☐ Make decisions regarding education and training
☐ Authorize access to confidential records (medical, financial)
☐ Other: [________________________________]

Property Management Powers Requested:

☐ Marshal, manage, and protect property
☐ Open / close bank accounts
☐ Pay bills and debts
☐ Manage real estate (no sale without court order)
☐ Receive and endorse income (SSA, pensions, dividends)
☐ Prosecute / defend claims
☐ Manage investments (consistent with Prudent Investor Act)
☐ File tax returns
☐ Make gifts (only with prior court approval, MHL § 81.21(a)(1))
☐ Other: [________________________________]

8. NOMINATION OF GUARDIAN (MHL § 81.19)

Petitioner proposes [NAME], of [____________], a person eligible under MHL § 81.19, as Guardian. Standby guardian (MHL § 81.08(a)(12)): [NAME].

9. ASSETS AND INCOME OF AIP (MHL § 81.08(a)(8))

10. RELIEF REQUESTED

Petitioner requests an Order:

☐ Appointing the Court Evaluator under MHL § 81.09
☐ Appointing counsel for the AIP under MHL § 81.10
☐ Scheduling hearing within 28 days (MHL § 81.07(b)(1))
☐ Issuing Order to Show Cause
☐ Granting temporary guardianship under MHL § 81.23 (if emergency)
☐ Adjudicating AIP an incapacitated person
☐ Appointing Petitioner / nominee as Guardian of the Person and/or Property
☐ Setting bond
☐ Granting such other relief as is just

VERIFICATION

STATE OF NEW YORK )
COUNTY OF [__________] )

[PETITIONER NAME], being duly sworn, deposes and says: I am the Petitioner herein; I have read the foregoing Petition and know the contents thereof; the same is true to my own knowledge except as to matters alleged on information and belief, and as to those matters, I believe them to be true.

[____________________________]
Petitioner

Sworn to before me this [____] day of [____________], 20[____].

[____________________________]
Notary Public

PART 2 — ORDER TO SHOW CAUSE (MHL § 81.07)

ORDER TO SHOW CAUSE

Upon the annexed Verified Petition of [PETITIONER], sworn to [__/__/____], let the AIP and all interested persons SHOW CAUSE before this Court at [____________________________], on [__/__/____] at [____________________________], why an Order should not be entered:

(i) Adjudicating the AIP an incapacitated person under MHL Article 81;
(ii) Appointing a Guardian of the Person and/or Property with the powers requested;
(iii) Granting such further relief as is just.

IT IS FURTHER ORDERED:

☐ [NAME OF COURT EVALUATOR], Esq., is appointed Court Evaluator under MHL § 81.09 with all duties enumerated therein, including investigation, interview of AIP and collaterals, and submission of written report at least 5 days before the hearing.

☐ [NAME OF COUNSEL], Esq., is appointed counsel for the AIP under MHL § 81.10.

☐ Service of this Order, the Petition, and supporting papers shall be made:

• By personal service on the AIP not less than 14 days before the hearing (MHL § 81.07(e)(2)(i));
• By mail upon all interested persons listed in the Petition (MHL § 81.07(g));
• Upon the Mental Hygiene Legal Service.

☐ Temporary Guardian under MHL § 81.23: [NAME] is appointed (if emergency basis shown).

Dated: [__/__/____] [____________________________]
Justice of the Supreme Court

PART 3 — NOTICE TO AIP — STATUTORY RIGHTS ADVISEMENT (MHL § 81.07(c))

TO: [NAME OF AIP]

A Petition has been filed in Supreme Court asking the Court to appoint a Guardian over your personal needs and/or property. THIS IS A SERIOUS LEGAL PROCEEDING THAT MAY AFFECT YOUR LEGAL RIGHTS.

YOUR LEGAL RIGHTS (MHL Article 81):

• You have the right to be present at the hearing. The hearing must be conducted in your presence unless you cannot meaningfully participate or attendance would cause harm.
• You have the right to a hearing.
• You have the right to an attorney of your own choosing OR a court-appointed attorney at no cost to you if you cannot afford one (MHL § 81.10).
• You have the right to a jury trial.
• You have the right to present evidence and cross-examine witnesses.
• You have the right to oppose the appointment of a guardian.
• You have the right to choose your own guardian.
• The petitioner must prove your incapacity by clear and convincing evidence.
• The Guardian's powers, if appointed, will be tailored to your functional limitations only.

HEARING:

PART 4 — NOTICE TO INTERESTED PERSONS (MHL § 81.07(g))

Notice mailed by first-class mail at least 14 days prior to hearing to: spouse; adult children; parents; adult siblings; person with whom AIP resides; chief executive officer of any facility; agent under POA or Health Care Proxy; Mental Hygiene Legal Service; and any other person designated by the court.

PART 5 — MEDICAL / PSYCHIATRIC AFFIDAVIT OF AIP'S FUNCTIONAL CAPACITY

AFFIDAVIT OF [NAME], M.D. / Psychologist

STATE OF NEW YORK )
COUNTY OF [__________] )

I, [NAME], being duly sworn, depose:

1. I am a [physician licensed in NY / psychologist licensed in NY] (License No. [____________]).
2. I last examined the AIP on [__/__/____] at [____________].
3. The AIP suffers from the following diagnoses: [________________________________].
4. As a result, the AIP has the following functional limitations affecting ADLs/IADLs and decision-making: [________________________________].
5. In my professional opinion, the AIP cannot adequately understand and appreciate the nature and consequences of [personal needs / property] decisions because: [________________________________].
6. ☐ The AIP can / ☐ cannot meaningfully participate in the hearing. If cannot, reason: [____________].
7. Prognosis: [________________________________].

[____________________________]
Affiant

Sworn before me this [____] day of [____________], 20[____].

[____________________________]
Notary Public

PART 6 — COURT EVALUATOR (MHL § 81.09) — APPOINTMENT AND DUTIES

The Court Evaluator is the eyes and ears of the court. The Evaluator must:

☐ Meet with and interview the AIP at the AIP's residence or place of care
☐ Inform the AIP, in language the AIP understands, of nature and purpose of proceeding
☐ Inform the AIP of right to counsel and right to a jury trial
☐ Interview the petitioner and proposed guardian
☐ Interview interested persons and collaterals (family, caregivers, treating physicians)
☐ Review medical records and financial records
☐ Visit the AIP's residence and observe living conditions
☐ Investigate available alternatives less restrictive than guardianship
☐ Investigate appropriateness of proposed guardian (MHL § 81.19)
☐ Submit a written report to the court before the hearing, as directed in the order to show cause (MHL § 81.09(c))
☐ Be available to testify at hearing

Compensation: Reasonable fees from AIP's estate or, if indigent, from public funds (22 NYCRR § 36.4).

PART 7 — COUNSEL FOR THE AIP (MHL § 81.10)

Under MHL § 81.10(c), the court shall appoint counsel — unless the AIP is already represented by counsel of their own choosing — whenever the AIP requests counsel, wishes to contest the petition, does not consent to a proposed move to a facility, opposes a requested major medical or dental procedure, a temporary guardian is sought, the court evaluator or court recommends counsel, or the court otherwise determines counsel is needed.

Counsel for the AIP shall:

☐ Personally interview the AIP within 14 days of appointment
☐ Counsel the AIP regarding the proceeding, rights, and likely outcomes
☐ Represent the AIP's expressed wishes — not the AIP's best interests
☐ Investigate the allegations and prepare a defense or counter-position
☐ Attend the hearing and represent the AIP zealously
☐ Be compensated from the AIP's estate or from public funds if indigent

PART 8 — LESS RESTRICTIVE ALTERNATIVE ANALYSIS (MHL § 81.02(a)(2))

The Court shall consider all available resources and less restrictive alternatives. Petitioner provides:

[________________________________]
[________________________________]

PART 9 — BOND (MHL § 81.25)

Bond requested in the amount of $[____________], or waived because:

☐ Proposed Guardian is a corporate fiduciary
☐ Guardian of Personal Needs only with no property powers
☐ All liquid assets to be placed in restricted accounts requiring court order to withdraw
☐ Other [____________________________]

PART 10 — ORDER AND JUDGMENT APPOINTING GUARDIAN (MHL § 81.15, § 81.16)

ORDER AND JUDGMENT APPOINTING GUARDIAN OF THE PERSON AND/OR PROPERTY

A hearing was held on [__/__/____]. The AIP was present (or excused for the following reason: [____________]). The Court considered the Petition, the Court Evaluator's report, counsel's submissions, medical evidence, and the testimony, and FINDS by clear and convincing evidence:

1. The AIP is likely to suffer harm because of inability to provide for personal needs and/or to manage property; and AIP cannot adequately understand and appreciate the nature and consequences of that inability.
2. Less restrictive alternatives are insufficient to protect the AIP.
3. The proposed Guardian is eligible under MHL § 81.19.

ADJUDGED that [NAME OF AIP] is an Incapacitated Person under MHL Article 81.

ORDERED that [NAME OF GUARDIAN] is appointed Guardian of the ☐ Person ☐ Property ☐ Both of [NAME], with the following powers tailored to the functional limitations found:

[________________________________]
[________________________________]

ORDERED that bond is set at $[____________] or waived.

ORDERED that the Guardian shall:

• Complete the Article 81 Guardian Training Program before issuance of Commission (22 NYCRR Part 36).
• File the Initial Report (MHL § 81.30) within 90 days of Commission.
• File Annual Reports (MHL § 81.31) annually in the month of May.
• File the Final Report (MHL § 81.33) upon termination, removal, or death of the IP.

Dated: [__/__/____] [____________________________]
J.S.C.

PART 11 — COMMISSION (LETTERS OF GUARDIANSHIP)

COMMISSION OF GUARDIAN — STATE OF NEW YORK SUPREME COURT, COUNTY OF [__________]

These presents certify that on [__/__/____], [NAME OF GUARDIAN], having (i) duly qualified, (ii) filed any bond required, (iii) completed the Article 81 Guardian Training Program, and (iv) signed the prescribed Oath, was issued a Commission as Guardian of the ☐ Person ☐ Property ☐ Both of [NAME OF INCAPACITATED PERSON] with the powers set forth in the Order and Judgment dated [__/__/____].

[____________________________]
County Clerk

[SEAL]

PART 12 — INITIAL REPORT (MHL § 81.30) AND ANNUAL REPORT (MHL § 81.31)

12.1 Initial Report (due within 90 days of Commission)

Includes:

☐ Marshalling of property — inventory
☐ Statement of personal needs plan
☐ Description of AIP's current condition, residence, and care
☐ Verified Annual Account (if property guardian)

12.2 Annual Report (due annually in the month of May — MHL § 81.31(a))

☐ Current functioning and condition of IP
☐ Residence / placement update
☐ Medical condition and treatment
☐ Social environment
☐ Property administered
☐ Verified annual account
☐ Statement of decisions made and powers exercised
☐ Plan for following year

12.3 Final Report (MHL § 81.33)

Filed upon termination of the guardian's authority (death of the incapacitated person, removal, resignation, or restoration), within the time directed by the court.

PART 13 — SCPA ARTICLE 17-A PATHWAY (Surrogate's Court — Intellectual / Developmental Disability)

SURROGATE'S COURT — STATE OF NEW YORK
COUNTY OF [____________________________]

13.1 Petition Requirements (SCPA §§ 1750, 1750-a)

☐ Two certifications: (a) physician + (b) physician OR psychologist
☐ Both certifications must state the proposed Ward is intellectually disabled, developmentally disabled, or has traumatic brain injury, and is incapable of managing himself/herself and/or affairs
☐ Notice to interested parties under SCPA § 1753
☐ Surrogate may dispense with hearing under SCPA § 1754, but may require one
☐ Guardian Ad Litem may be appointed in Surrogate's discretion

13.2 Order Appointing 17-A Guardian

The Surrogate, having reviewed the Petition and the two certifications, hereby:

ORDERS that [NAME OF GUARDIAN] is appointed Guardian of the ☐ Person ☐ Property ☐ Both of [NAME OF WARD] under SCPA Article 17-A.

ORDERS that Letters of Guardianship shall issue.

13.3 Letters of Guardianship (SCPA Article 17-A)

LETTERS OF GUARDIANSHIP — SURROGATE'S COURT

These Letters certify the appointment of [NAME] as Guardian of the Person and/or Property of [NAME OF WARD] under SCPA Article 17-A by Decree of this Court dated [__/__/____].

[____________________________]
Surrogate / Chief Clerk

[SEAL]

PART 14 — COMPARISON OF ARTICLE 81 vs. ARTICLE 17-A

SOURCES AND REFERENCES

• N.Y. Mental Hygiene Law Article 81: https://www.nysenate.gov/legislation/laws/MHY/A81
• N.Y. SCPA Article 17-A: https://www.nysenate.gov/legislation/laws/SCP/A17-A
• 22 NYCRR Part 36 (Court-Appointed Fiduciaries)
• Matter of Chaim A.K., 26 Misc. 3d 837 (Surr. Ct. N.Y. Cnty. 2009) (17-A scrutiny)
• Matter of Mark C.H., 28 Misc. 3d 765 (Surr. Ct. N.Y. Cnty. 2010)
• NY Supported Decision-Making Agreements Act, MHL Article 82 (ch. 481 of 2022)
• Mental Hygiene Legal Service: https://ww2.nycourts.gov/courts/ad1/MHLS/index.shtml

END OF PACKAGE