New York: Adult Guardianship and Conservatorship Petition Requirements

Requirements one by one

Proceeding and state terminology

Article 81 uses one guardianship case for two possible domains. Under § 81.02,
the court may grant authority over personal needs, property and financial
affairs, or both. Under § 81.08, the filer must identify the particular powers
requested and connect each one to the adult's functional level and needs. This
page follows only that ordinary Article 81 petition-to-order path.

Who may file and where

Under § 81.06, the adult, a presumptive heir, an estate representative,
a trustee, a co-resident, a person or public agency concerned with the adult's
welfare, or the chief executive of a facility where the adult resides may file.
The current statute does not yet contain the bill-collection restrictions
described in the pending-legislation entries below.

Under § 81.05, venue generally follows residence or physical presence. When the
adult lives in a facility, the facility's county is treated as the residence,
although an interested party may seek a change because of witness or party
inconvenience or the adult's condition.

What the petition must contain

Under § 81.08, the petition must be verified under oath and give concrete facts, not a bare
diagnosis. Personal-needs authority requires actual actions or occurrences
showing likely harm tied to inability to understand and appreciate the problem.
Property authority requires comparable facts about financial transactions or
other actual occurrences. The petition also identifies the requested powers and
duration, financial resources and debts, relatives, petitioner, proposed and
standby guardians, the proposed guardian's suitability, any temporary relief,
and available resources already considered.

Proof required for appointment

There are two routes under § 81.02. If the adult agrees, the court still must
find the appointment necessary. Without agreement, incapacity requires likely
harm because the adult cannot meet personal needs or manage property and cannot
adequately understand and appreciate the nature and consequences of that
inability. Under § 81.12, the burden rests on the petitioner and the proof must
be clear and convincing.

Alternatives the court must address

The alternatives inquiry appears at every stage. Under § 81.08, the
petition must disclose available resources considered. Section 81.09 directs the
court evaluator to investigate whether those resources are sufficient and
reliable and what the least restrictive intervention would be. Section 81.02
requires the judge to consider those same resources before finding a guardian
necessary.

Even after incapacity is proved, § 81.16 allows a protective arrangement,
contract, trust, or single transaction without appointing an ongoing guardian.
If a guardian is appointed, the order must transfer only the powers the court
finds necessary.

Notice, service, and hearing timing

Under § 81.07, several clocks attach to the order to show cause. The hearing is set
no more than 28 days after the order is signed, subject to a good-cause earlier
date or adjournment. The adult ordinarily receives personal delivery of the
order and petition at least 14 days before the hearing. If the adult refuses
service, the court may authorize another method; for good cause, the court may
also shorten the statutory period.

The separate notice list includes a spouse, parents, adult children, adult
siblings, co-residents, designated agents, genuinely interested people or
organizations, specified public agencies, and facility officials. Those
recipients ordinarily receive mailed notice and the order at least 14 days
before the hearing.

Counsel and hearing rights

Under § 81.10, the adult may choose counsel. If no chosen lawyer is
already serving, the court must appoint counsel when the adult requests one,
contests the petition, objects to a requested facility move or major treatment,
faces a temporary-guardian request, needs advocacy separate from the evaluator,
or when counsel would help resolve the case.

Under § 81.11, parties may present evidence, call experts, and
cross-examine witnesses. The hearing ordinarily occurs in the adult's presence,
at the courthouse or the adult's residence. Absence is permitted only when the
adult is out of state or the record clearly establishes complete inability to
participate or that presence would produce no meaningful participation. A jury
must be demanded by the order-to-show-cause return date when factual issues are
raised.

Medical evidence or court evaluator

New York's ordinary statute does not make a physician certificate a universal
petition attachment. Instead, § 81.09 requires appointment of a court evaluator
when the order to show cause issues. The evaluator meets the adult, explains the
case and rights, investigates functions, finances, supports, preferences, and
the proposed powers, and submits written recommendations. The evaluator may
retain an independent medical expert only where the court finds that step
appropriate.

Limits on the order

Section 81.15 requires findings tied to the requested domain. Personal-needs
findings address functional limitations, understanding, likely harm, necessity,
specific least-restrictive powers, and duration. Property-management findings
also identify the property and financial resources. Section 81.16 then requires
an order designed around only the powers found necessary and preserves the
option of a protective arrangement without ongoing guardianship.

Temporary guardianship follows separate § 81.23. It requires foreseeable danger
to health and well-being or danger of waste, misappropriation, or property loss;
the temporary powers must be specifically enumerated and remain limited like
ordinary guardian powers.

What trips people up

Consent does not make necessity disappear. An adult may agree to an
appointment without an incapacity adjudication, but § 81.02 still requires the
court to find that appointment necessary and to limit the powers.

The court evaluator is not automatically the adult's advocate. Section
81.10 requires separate counsel when advocacy conflicts with the evaluator's
neutral investigative role. The court may dispense with or suspend the
evaluator when counsel is appointed, but the roles should not be treated as
interchangeable.

The hearing deadline and service deadline measure different events. The
28-day outside hearing date runs from signing the order to show cause; the
adult's ordinary 14-day personal-service period runs backward from the hearing.

Common questions

Can the adult agree to a guardian without being declared incapacitated?

Yes. Section 81.02 permits an agreed appointment, but the judge must still find
the appointment necessary and may grant only the least restrictive powers
needed.

Does the court evaluator automatically receive private medical records?

No. Under § 81.09(d), the evaluator must apply for permission, and the court may
order disclosure only when the records are likely to help complete the report,
subject to other state and federal law.

Statutes and sources

• N.Y. Mental Hyg. Law §§ 81.02, 81.12 — necessity, incapacity, functional
  standard, least-restrictive powers, and the petitioner's clear-and-convincing
  burden. https://legislation.nysenate.gov/pdf/laws/MHY81.02 and
  https://legislation.nysenate.gov/pdf/laws/MHY81.12 (accessed 2026-07-18)
• N.Y. Mental Hyg. Law §§ 81.05-.08 — venue, who may file, service and notice,
  hearing timing, and verified petition contents.
  https://legislation.nysenate.gov/pdf/laws/MHY81.05 (accessed 2026-07-18)
• N.Y. Mental Hyg. Law §§ 81.09-.11 — court evaluator, appointed counsel,
  attendance, evidence, cross-examination, and jury demand.
  https://legislation.nysenate.gov/pdf/laws/MHY81.09 (accessed 2026-07-18)
• N.Y. Mental Hyg. Law §§ 81.15-.16 — findings, protective arrangements, and
  powers limited to demonstrated needs.
  https://legislation.nysenate.gov/pdf/laws/MHY81.15 (accessed 2026-07-18)
• N.Y. Mental Hyg. Law § 81.23 — separate temporary-guardian threshold and
  limited powers. https://legislation.nysenate.gov/pdf/laws/MHY81.23 (accessed
  2026-07-18)