Detailed Answer
If you need to seek guardianship or conservatorship for a loved one under New York law, follow these general steps.
- Determine the correct proceeding – Use guardianship under New York Mental Hygiene Law Article 81 to make personal or financial decisions. To manage only a person’s estate, you may use conservatorship under the Surrogate’s Court Procedure Act Article 17.
- Obtain professional evaluations – A qualified physician or psychologist must evaluate the proposed incapacitated person and submit an affidavit of incapacity. See MHL § 81.03.
- Prepare and file the petition – For guardianship, file your petition in the Supreme Court of the county where the person lives under MHL § 81.03. For conservatorship, file in Surrogate’s Court under SCPA § 1701.
- Give notice to interested parties – Serve the petition on the proposed incapacitated person and required family members. Send notice to the district attorney under MHL § 81.05 or SCPA § 1702 for conservatorship.
- Court-appointed evaluation – The court appoints an independent evaluator under MHL § 81.19 to interview the person and report on capacity.
- Attend the court hearing – A hearing must occur within 60 days for guardianship (MHL § 81.11). Both sides can present evidence and witnesses.
- Receive court appointment – If the court finds incapacity, it issues letters of guardianship (MHL § 81.18) or letters of conservatorship (SCPA § 1750). The guardian or conservator may need to post a bond unless waived.
Disclaimer: This article is for educational purposes only and does not constitute legal advice.
Helpful Hints
- Consult an attorney experienced in elder or disability law early.
- Gather medical records and contact information for close relatives before filing.
- Keep detailed financial records if you handle the estate.
- Maintain clear communication with the court and the proposed person throughout the process.
- Understand that the court will review decisions to ensure they serve the person’s best interests.