Guardianship of An Incapacitated Person (Article 81 Guardianship)

In a case involving a guardianship of an incapacitated person (also known as an Article 81 case), a judge must decide whether a person is incapacitated and if they need to have a guardian appointed. A person is incapacitated if they are:

1. unable to care for their own property and/or personal needs, and
2. likely to suffer harm because they cannot understand the consequences of not being able to care for their property and/or personal needs

At the beginning of the case, this person is called an “alleged incapacitated person” (or AIP) because their inability to care for their needs is simply an allegation, or someone’s opinion.

To obtain an Article 81 guardian, a person (over the age of 18) or entity must first file a case in court and prove that a guardian is necessary. The person or entity that files for the appointment of an Article 81 guardian is called a petitioner. Typically, the petitioner is the alleged incapacitated person’s family member or a qualified agency.

If a judge decides that a person is incapacitated, the proposed Article 81 guardian must complete a training and be approved by the court before they can be officially appointed. If there is no family member willing and able to become that person’s Article 81 guardian, the judge can appoint a previously trained person to take on this responsibility. Another option is to appoint a social service agency that specifically provides this type of service.

A judge can appoint an Article 81 guardian to help a person manage their personal needs or property or both.

Examples of personal needs include, but are not limited to:

• making healthcare decisions
• deciding where the person should live
• applying for government or private benefits, on behalf of the person
• accessing confidential records

Examples of property management include, but are not limited to:

• paying bills
• organizing the person's assets
• entering into contracts
• making gifts on behalf of the person

Important Note: Asking the Court to appoint an Article 81 guardian to make decisions for another person is a serious matter. Before a judge can appoint an Article 81 guardian the judge must hold a hearing and listen to testimony and evidence. If a judge decides to appoint an Article 81 guardian, the judge will specify what decisions a guardian can make and what decisions the person with the incapacity can make, based on the needs of that person.

In New York State, Article 81 Guardianship cases are heard in Supreme Court or County Court and filed under Article 81 of the Mental Hygiene Law.