Practice area
Guardianship when someone can no longer decide for themselves
Guardianship is the process families turn to when an adult has lost the capacity to manage their own affairs and no adequate plan is in place. It is a court proceeding, and it is more involved than most families expect.
A guardianship proceeding in New York asks a court to appoint someone to make personal and financial decisions for an adult who can no longer make those decisions alone. For adults who have become incapacitated, this is governed by Article 81 of the New York Mental Hygiene Law. Suzanne Levy works on both sides of these proceedings: she brings guardianship petitions on behalf of families, and she is frequently appointed by New York State Court judges to serve as a Court Evaluator, as Guardian for an incapacitated person, and as Guardian Ad Litem.
When families come to us about this
A parent has lost capacity and signed nothing in advance
There is no power of attorney and no health care proxy, the bank will not talk to you, and decisions need to be made. This is the situation guardianship exists for.
Someone is being financially exploited
Where a vulnerable adult's assets are being moved, or documents have been signed under pressure, a guardianship proceeding can put court oversight in place and stop further damage.
The family disagrees about who should act
Siblings frequently disagree about who should be in charge and what the right level of care is. These proceedings can become contested, and often benefit from mediation alongside the litigation.
You have been appointed and need to comply
Guardians have real, ongoing reporting duties to the court. Getting the annual accounting right matters.
How the process works
The court's central concern throughout is the person at the center of the case, whom the court refers to as the Alleged Incapacitated Person, or AIP.
- The petitionA family member, or sometimes a close friend, petitions the court by Order to Show Cause asking to be appointed as guardian of a person who no longer has capacity to make their own decisions.
- A Court Evaluator is appointedThe court appoints a Court Evaluator to prepare a report on the AIP's circumstances, medical position and capacity. The Court Evaluator is regarded as the eyes and ears of the court.
- The investigationThe Evaluator interviews everyone relevant: the AIP themselves, family members, medical professionals, social workers, friends, and any other party with something useful to say.
- The hearingThe Evaluator's report is read into the record during the proceeding, and the judge relies on it to understand the facts and circumstances of the AIP's situation.
- The CommissionAt the conclusion of the proceeding the court issues a Commission appointing the guardian. Depending on the circumstances, the guardian may be empowered to make property decisions, personal decisions, or both.
- Ongoing oversightThe guardian must file annual reports with the court, including an accounting of the incapacitated person's resources that the guardian has used. That requirement exists specifically to provide oversight and prevent financial abuse.
Guardianship is not always the right answer
Because guardianship removes decision-making authority from an adult, it is a significant step and the court treats it as one. In many situations there is a less restrictive route, particularly if there is still time to plan.
- A durable power of attorney, signed while someone still has capacity, allows a trusted person to handle financial matters without a court proceeding.
- A health care proxy does the same for medical decisions.
- A living will records treatment preferences in advance.
- A HIPAA release lets family members actually obtain medical information when they need it.
- A properly funded trust can keep asset management out of court entirely.
- Where those documents already exist and are adequate, guardianship may be unnecessary, which is worth establishing before a petition is filed.
Where we handle these matters
Guardianship proceedings are brought in the Supreme Court of the county where the person lives. The firm handles these matters from its Great Neck and Manhattan offices, principally across Nassau, New York, Queens, Kings, Westchester and Suffolk Counties.
Guardianship: common questions
More questions are answered on the firm's FAQ page.
What does the Court Evaluator actually do?
The Court Evaluator is appointed by the court, not the family, and investigates independently. They review the circumstances, medical information and capacity of the person at the center of the case, interview the relevant people, and prepare a report that is read into the record and relied on by the judge. They are described as the eyes and ears of the court.
How long does a guardianship proceeding take?
It varies with the county, the court's calendar, the complexity of the person's circumstances, and above all whether the proceeding is contested. An uncontested matter moves considerably faster than one where family members are opposing each other. We can give you a realistic sense of timing once we understand the specifics.
Can we avoid guardianship altogether?
Often, if there is still time. A power of attorney, health care proxy, living will and HIPAA release signed while someone has capacity can make a guardianship proceeding unnecessary. Those documents have to be in place before capacity is lost, which is exactly why advance planning matters.
What obligations does a guardian have after being appointed?
A guardian is accountable to the court on a continuing basis and must file annual reports, including an accounting of the incapacitated person's resources that the guardian has used. This is a genuine obligation with a clear purpose: it lets the court see how the money is being handled and deters financial abuse.
What if my sibling and I disagree about who should be guardian?
That happens frequently, and the proceeding can become contested. Because these disputes are usually about a family relationship as much as a legal question, mediation is sometimes a better path than fighting it out, and Suzanne mediates precisely this kind of dispute as well as litigating it.
Facing a guardianship decision for a parent or relative?
Most families come to us with a decision that already feels overdue. A first conversation is about understanding where you actually stand and what your options are.