In re: A parent’s independenceSupreme Court · Article 81Manhattan · Queens · All five boroughs
Guardianship lawyer in Queens & NYC
Reviewed by David Schnall, Esq.Last reviewed
Defending capable parents against wrongful guardianship petitions, and representing families in Article 81 cases in New York State Supreme Court. When relatives try to take control of someone’s life, the defense has to start immediately.
Free virtual consultation · By video or phone · Confidential
33
Years of family law
N.Y. Bar 1993 · S.D.N.Y. 1994
1,000+
Clients represented
Family law only
4.9
Rating on Avvo
58 client reviews
4×
Avvo Clients’ Choice
2018 · 2019 · 2021 · 2023
NYU
School of Law
J.D. 1991 · B.A. in Finance and Accounting
Every
NYC Family Court
Plus NYS Supreme & S.D.N.Y.
In brief
Guardianship in New York: key facts.
General information about New York law, not advice about your case. Each point is explained below.
- Which court
- Supreme Court, in New York City, under Article 81 of the Mental Hygiene Law.
- The standard
- Clear and convincing evidence of incapacity, and a guardian must be necessary.
- How fast
- The hearing is set no more than 28 days after the order to show cause is signed.
- A guardian’s powers
- Only those that are necessary. The person keeps every right the guardian isn’t granted.
- A jury
- The person can demand a jury trial on disputed facts, by the return date.
Growing older is not incapacity.
An Article 81 guardian can be given power over a person’s money, property and medical care, even over where they live. Used properly, guardianship protects people who truly can’t protect themselves. Used wrongly, it takes a capable adult’s life out of their own hands.
Wrongful petitions often come from inside the family: a relative who wants control of a parent’s money or home, or who disagrees with how a parent chooses to live. The accusations can be painful to hear, and the timetable is short. The hearing is generally set within 28 days of the judge signing the papers.
The law leans toward independence. A guardian can be appointed only on clear and convincing evidence, and only with the powers actually needed. The defense is to make the court see the person as they are: capable, and entitled to decide for themselves.
New York Mental Hygiene Law § 81.01
… the greatest amount of independence and self-determination and participation in all the decisions affecting such person’s life.
Defending independence, in court.
For elderly parents and the families protecting them, in New York State Supreme Court.
Defending wrongful petitions
Answering a guardianship petition filed against a capable parent: the papers, the evidence and the hearing.
Contesting claims of incapacity
Challenging the evidence of incapacity, and showing the court what the person can do: medical records, witnesses who know their daily life, and the person themselves.
Showing a guardian isn’t needed
Proving that the arrangements already in place, such as a power of attorney, a health care proxy or home care, are enough without a guardian.
Limiting a guardian’s powers
When some help is needed, arguing for the least restrictive arrangement, so the person keeps every decision they can still make.
Elder abuse concerns
When a petition is part of a larger pattern of pressure, isolation or financial exploitation, putting that pattern in front of the court.
Changing or ending a guardianship
When a person’s condition improves, or a guardianship is no longer necessary, asking the court to reduce the guardian’s powers or discharge the guardian.
Not sure your situation fits a box? Most family cases touch more than one. The consultation sorts that out.
Discuss your caseA courtroom defense, not paperwork.
- i.
Court-appointed counsel, for children and adults
10+ years
For more than a decade, courts appointed David Schnall to represent children and adults in Family Court. Standing up for a person whose voice might otherwise be lost is work he has done for years.
- ii.
The finances, understood
B.A. in Finance and Accounting
Many wrongful petitions are really about money. A background in finance and accounting helps show who has been managing a parent’s finances, how, and who stands to gain from a guardianship.
- iii.
33 years in New York’s courts
1,000+ clients · NYS Supreme Court
In New York City, guardianship cases are heard in Supreme Court. He has represented clients there, and in every New York City Family Court.
How an Article 81 case moves.
Guardianship cases run on a short timetable set by statute. This is the usual path in New York City.
Which court
New York State Supreme Court. In New York City, adult guardianship cases under Article 81 of the Mental Hygiene Law are heard there.
- 01
Free consultation
Tell David Schnall about the petition, or the one you fear is coming. You leave knowing how the case will unfold, how long it may take, and what it may cost.
- 02
The petition and order to show cause
The case starts when a petitioner files in Supreme Court and the judge signs an order to show cause. It must be personally delivered to the person at least 14 days before the hearing, in large type and plain language that explains their rights.
- 03
The court evaluator and counsel
The court appoints an independent court evaluator to investigate and report. It must appoint a lawyer for the person if they ask for one, want to contest the petition, or oppose a proposed move to a nursing home.
- 04
Preparing the defense
Medical evidence, witnesses who know the person’s daily life, and proof of the arrangements already in place, such as a power of attorney or a health care proxy.
- 05
The hearing
Generally held within 28 days of the order to show cause, in the person’s presence, at the courthouse or where they live if needed. The person can present evidence, call and cross-examine witnesses, and demand a jury on disputed facts.
- 06
The decision, and after
A decision is due within seven days of the hearing unless the court extends the time. If the person isn’t incapacitated, the petition is dismissed; if a guardian is appointed, the powers must be limited to what is necessary, and can later be reduced or ended.
The law leans toward independence.
Article 81 was written to protect people without taking over their lives. These are the rules that decide a petition.
Incapacity, proven clearly
A guardian can be appointed only if clear and convincing evidence shows the person is likely to suffer harm because they can’t provide for their personal needs or manage their property, and can’t adequately understand and appreciate that inability.
Only if necessary
A guardian is appointed only when one is necessary. The court has to consider whether the resources already in place, such as a power of attorney, a health care proxy, a trust or home care, are sufficient and reliable without a guardian.
The least restrictive form of intervention
A guardian may be given only the powers that are necessary, tailored to the person’s actual limitations. The person keeps every power and right the guardian isn’t granted.
The person’s rights
To be personally served with the papers, to be present at the hearing, to a lawyer, to present evidence, to call and cross-examine witnesses, and to demand a jury trial on disputed facts, if the demand is made by the return date.
If the petition is dismissed
The judge has discretion to make the petitioner pay the court evaluator and the lawyer the court appointed for the person. A petition that fails can cost the person who filed it.
Not the same as 17-A
Guardianship of an adult with an intellectual or developmental disability is a separate proceeding, in Surrogate’s Court, under Article 17-A of the Surrogate’s Court Procedure Act.
General information about New York law, not legal advice for your situation. The law changes and every case turns on its facts; the free consultation applies it to yours.
… We were dealing with overwhelming emotions and stress concerning elder abuse and fighting against a guardianship petition submitted by family members who attempted to wrongfully strip away the rights of a fully capacitated elderly parent by falsely accusing her of being incompetent. David not only walked us through the process but also provided strong fierce defense in the courtroom. …
After many consultations with different lawyers, David was Authentic, relatable, and showed patience from the beginning. During the process, you wouldn’t want anyone else representing you, David is transparent, educates, communicates, understands…
Reviews are quoted exactly as clients wrote them and reflect individual experiences. Prior results do not guarantee a similar outcome.
Read more client reviewsAn honest assessment, not a sales pitch.
Your free consultation covers how to achieve your goals, how your case will unfold, how long it will take, and the estimated costs.
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Free virtual consultation · By video or phone · Confidential
Guardianship: straight answers.
The questions people ask first, answered plainly. Your own facts are what the free consultation is for.
Only if a court finds, by clear and convincing evidence, that she is likely to suffer harm because she can’t manage her personal needs or property and can’t understand that inability, and that a guardian is necessary. A capable adult has the right to make her own decisions, including ones her family disagrees with.
A power of attorney or a health care proxy is chosen by the person while they are capable, and they stay in control. A guardian is appointed by a court, often over the person’s objection. Arrangements already in place can show the court that no guardian is needed.
Quickly. The hearing is generally set within 28 days of the judge signing the order to show cause, and the papers must be delivered to the person at least 14 days before it. Call as soon as you learn of a petition.
Generally, yes. The hearing is held in the person’s presence, at the courthouse or where they live, so the judge can form their own impression. There are narrow exceptions, for example when the person is completely unable to participate.
Only on a showing of danger in the near future to the person’s health and well-being, or of waste or loss of their property. Opposing an unnecessary temporary appointment is often the first fight.
Yes. If the person becomes able to manage some or all of their affairs, or the guardianship is no longer necessary, the court can reduce the guardian’s powers or discharge the guardian.
Begin the record.
What you’ll learn in your free consultation
- 01How to achieve your goals
- 02How your case will unfold
- 03How long it will take
- 04The estimated costs
An honest assessment, not a sales pitch.
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