Filing & Answering Article 81 Guardianship Petitions

Article 81 of the Mental Hygiene Law (MHL), providing for proceedings for the appointment of a guardian for persons with incapacities, was enacted by the New York State legislature in 1992 to address the complex needs of persons challenged by various mental and physical incapacities, often in crisis. In so doing, the legislature sought to balance the need for intervention which assists in meeting an individual’s needs with the individual’s right to independence and self-determination.   Accordingly, the guardianship process is unique and designed to address the core issues in an efficient and expedient manner without discovery and protracted discovery disputes, unlike proceedings in other civil court matters. How does an Article 81 guardianship proceeding get started?


Who can commence an Article 81 guardianship proceeding?

A guardianship proceeding may be commenced by the person alleged to be incapacitated, a person legally entitled to benefit from the estate of an alleged incapacitated person, an executor or administrator of the estate of the alleged incapacitated person, and various other persons identified within the statute. MHL § 81.06.


Most significantly, a guardianship petition can be commenced by “a person otherwise concerned with the welfare of the person alleged to be incapacitated, ” MHL § 81.06 (6), which deviates from the well-known standing requirement of other civil actions which compel that a civil action is commenced by a person who has sustained a direct injury or harm.   This departure was deemed necessary by the legislature to afford various social services agencies the flexibility and creative mechanisms deemed necessary in obtaining intervention for persons in crisis or in need of assistance. In addition to these agencies, social workers in hospitals and nursing homes and even concerned neighbors, friends and care-givers have the ability to commence a guardianship action when deemed appropriate.


The Article 81 Guardianship Petition

The Article 81 petition is filed by Order To Show Cause (OTSC) and must include very specific information, such as facts describing the alleged incapacitated person, a description of that person’s functional level, the powers sought, the duration of the powers, among other facts.  MHL § 81.08 (1)-(15).    The required documents are filed in the specially designated guardianship office designated within each Supreme Court building in each county in New York City.  However, before the OTSC and petition will be accepted by the guardianship office, the filings must be reviewed by the clerk of the court and approved for the purchase of an index number. Once the index number has been assigned to the documents, they can be taken to the guardianship office for filing.  Thereafter, the guardianship office will assign the matter to a specially designated guardianship judge who will also ensure that the information contained in the documents complies with the statutory requirements.  If not, the Judge will decline to execute the OTSC, thereby denying the relief sought in the petition.


Next Steps After the Article 81 Guardianship Petition is Filed

If the Judge signs the OTSC, the Judge will designate the manner in which the documents are to be served, the person(s) to be served and a return date on which the matter is to be heard by the court.  Although the statute requires that the matter is heard “no more than twenty-eight days from the date of the signing of the order to show cause,” MHL § 81.07 (b) 1, such is sometimes not the case as the guardianship courts are overwhelmed and understaffed.  For this reason, a petitioner may have to wait several months for the matter to be finally heard by the court.

In appropriate circumstances, the court may grant immediate relief by assigning a temporary guardian with limited powers or staying an order of eviction, pending the hearing.  The need for such immediate relief must also be stated and defined within the documents filed with the court.  Generally the filings are reviewed by the Judge based upon the submission of the papers without the need for personal appearance by the petitioner or counsel for the petitioner.

If a respondent party opposes the relief requested, and as otherwise required by Article 4 of the CPLR, an answer to the petition must be filed with the court.  As required, the respondent “may raise an objection in point of law by setting it forth in his answer or by a motion to dismiss the petition, made upon notice within the time allowed for answer.” CPLR § 404. The petitioner is then afforded an opportunity to reply. Id.  Notably, and unlike most other civil actions, “[l]eave of court shall be required for disclosure except for a notice” to admit under section 3123.   CPLR § 408.

By design, the process is structured to be efficient and expedient without the delays often emblematic of the civil process in general.  A delay in processing a guardianship application with protracted legal proceedings undermines the Article 81 statutory objectives and may well cause further detriment to a person in need of the services the statute was designed to provide. For these reasons, there can be no substitute for proper preparation and planning which begins with an understanding of the procedural underpinnings of the process.  All too often the commencement of a guardianship action, the successful prosecution of the petition for guardianship, or the defense/opposition to the action is frustrated and delayed by practitioners lacking the appropriate understanding of the process or ill-equipped to deal with its distinctive requirements.

© 2016 NY Guardian Advocate. All Rights Reserved.

Philadelphia office
1635 Market Street, Suite 1600
Philadelphia, PA 19103
By Appointment Only

Tampa office
1725 East Fifth Avenue
Tampa, FL 33605
By Appointment Only