An adult son calls my office from Brooklyn. His mother, a widow in her late 80s, has started giving large sums of money to a new “friend” she met online. Her bills are going unpaid, and she’s refusing to see a doctor about her increasing confusion. The son has no legal standing to access her bank accounts or speak to her physicians because his mother never signed a Power of Attorney or Health Care Proxy. He feels helpless, watching her life unravel. In a situation like this, a guardianship proceeding is often the only remaining path.
Appointing a guardian for an adult is one of the most drastic interventions the law allows. It is a profound step—a court stripping an individual of their fundamental right to make their own decisions. It is a measure of last resort, pursued only when someone is unable to manage their own personal or financial affairs and is at risk of harm. This is not about disagreeing with a loved one’s choices. It is about protecting someone who has lost the capacity to choose.
The Standard for Incapacity in New York
Before a court will appoint a guardian, the person bringing the petition—often a family member—must prove that the individual is incapacitated. The governing statute for these proceedings is Article 81 of the Mental Hygiene Law. This law defines incapacity not by a medical diagnosis like dementia or Alzheimer’s, but by a person’s functional limitations.
The court asks practical questions: Can this person manage their daily needs like shopping, cooking, and personal hygiene? Can they understand their financial situation, pay their bills, and protect their assets from fraud? Can they comprehend the nature and consequences of proposed medical treatments? The focus is on what the person can or cannot do. A court-appointed evaluator will investigate, interview the person in question, and report back to the judge.
The court’s guiding principle under Article 81 is to impose the least restrictive intervention possible. The goal is not to take over someone’s life entirely. If an individual can handle day-to-day personal needs but can no longer manage a complex investment portfolio, the court might appoint a guardian with powers limited strictly to financial matters. The court grants only the specific powers necessary to address the person’s demonstrated needs.
Guardian of the Person vs. Guardian of the Property
A court can grant two distinct areas of authority. One person may be appointed to handle both, or the duties may be split.
Guardian of the Person
This authority concerns an individual’s personal welfare. A guardian of the person has the power to make decisions about healthcare, living arrangements, and other personal matters. They might be responsible for:
- Consenting to medical or dental treatment.
- Deciding where the incapacitated person will live, whether at home with aides, in an assisted living facility, or a nursing home.
- Managing their social life and daily activities to ensure their well-being.
This is an immense responsibility. The guardian must always act in the best interest of the individual, a principle known as their fiduciary duty. They must make the decisions they believe the person would have made for themselves if they were still able.
Guardian of the Property
A guardian of the property acts as the steward of the person’s financial life. Their role is to marshal, protect, and manage the individual’s assets. This includes:
- Accessing bank accounts to pay bills and manage daily expenses.
- Collecting income from Social Security, pensions, or other sources.
- Managing investments and real estate.
- Filing tax returns on their behalf.
This role comes with stringent oversight. The guardian must file an initial inventory of all assets with the court and provide a detailed accounting every year, documenting every dollar that comes in and goes out. This protects against mismanagement or abuse and holds the guardian accountable for their stewardship of the estate.
A Proactive Plan Is Always Better
A guardianship proceeding is a public, often costly, and emotionally draining process for a family. It is a solution born from a crisis. At my firm, we work with families to put proactive plans in place precisely to avoid this scenario. A properly drafted Power of Attorney and Health Care Proxy allow you to choose who will make decisions for you if you become unable to do so yourself.
By naming an agent you trust—a spouse, an adult child, a sibling—you keep these deeply personal matters private and out of the court system. You empower the people who know you best to step in seamlessly when needed. This is the core of deliberate, intentional estate planning—building a contingency for life’s uncertainties so your family is not forced to turn to a judge for help.
If you are concerned that a loved one may be unable to manage their affairs and has no advance directives, the first step is to carefully document the specific behaviors and events causing this concern. Once you have a clear picture of the situation, we can schedule a private consultation to discuss whether a guardianship proceeding is the right and necessary path forward.
