If a person becomes incapacitated during adulthood, a guardianship must be pursued in Supreme Court under an Article 81 proceeding. This guardianship proceeding is very different from other guardianship proceedings. The Court’s inquiry is not only whether incapacity exists, but also to what extent. The guardian will only be given powers over the incapacitated individual for those aspects of their lives in which they are determined to need assistance. If the incapacitated adult needs additional assistance as time goes by, the guardian will need to go back to the Court for an expansion of their powers as guardian. The proceeding requires a formal hearing in all cases in the presence of the alleged incapacitated person. In general, it can be the most time consuming and expensive of the guardianship proceedings in New York. This type of guardianship proceeding can be avoided by the adult signing a thorough and well-planned power of attorney prior to incompetency.
If a guardianship proceeding is needed in New York, it is important to choose the correct type of proceeding that is appropriate for the incapacitated individual and that would serve to provide the most benefit to that individual. Consultation with an attorney is important to determine the best course of action in each case.