Guardianship: Fact or Fiction

May 2021

By: Laura Brancato, Esq., Littman Krooks LLP

In recent months, television viewers have been captivated by docuseries and fictional portrayals of conservatorship, known in New York as Guardianship. As with most on-screen productions, there may be more dramatic fiction at work than factual portrayal. A reasonable viewer would be worried about the prospect of guardianship, and maybe with good reason. A guardianship proceeding is an involved and often expensive process whereby a court declares a party to be incapacitated. This often means that the party no longer makes decisions about finances or medical treatment or even where they reside. It is essential to understand the New York State statutory framework and what our clients can do to avoid a guardianship altogether.

In this blog we will separate fact from fiction.

Fiction: Guardianship proceedings happen without the participation of the person alleged to be incapacitated.

Fact: Guardianship proceedings in New York are initiated through the New York State Supreme Court and constitutional protections exist in each proceeding which afford the person alleged to be incapacitated with right to be heard at any hearing which relates to their case. In fact, if the alleged incapacitated person (“AIP”) is not present at the hearing, and no adequate reason is provided for their absence, any decision subsequently made by a judge can be overturned by a higher court. In New York, guardianships are initiated pursuant to the Mental Hygiene Law which is a statute with a multitude of protections for the AIP. Moreover, if the presiding judge does not appoint an attorney for the AIP, the AIP always maintains the right to request an attorney be appointed at any time during the guardianship proceeding.