New York Guardianship Laws: Article 81, 17-A and Minors (2026)

In New York, guardianship runs on three separate statutory tracks. Mental Hygiene Law Article 81 lets the supreme court, the surrogate's court or the county court appoint a guardian "to act on behalf of an incapacitated person in providing for personal needs and/or for property management" (N.Y. Mental Hyg. Law § 81.03(a)); a determination of incapacity "shall be based on clear and convincing evidence," and the burden of proof is on the petitioner (§§ 81.02(b), 81.12(a)). Guardianship of a child (an "infant" in the statute) runs through Article 17 of the Surrogate's Court Procedure Act, and guardianship of an adult with an intellectual or developmental disability can instead run through SCPA Article 17-A.

New York uses one title, guardian, for both adult roles. A single Article 81 guardian may be given personal-needs powers, property-management powers, or both, and only the powers the court finds necessary (§ 81.16(c)). For how other states handle these questions, see our guardianship laws by state overview.

Information last verified on October 20, 2026. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers New York state law on guardianship of adults under Mental Hygiene Law Article 81, guardianship of minors under SCPA Article 17, guardianship of adults with intellectual or developmental disabilities under SCPA Article 17-A, the General Obligations Law § 5-1551 parental designation, standby guardianship, supported decision-making under Article 82, and interstate transfers under Article 83. It does not cover custody disputes between parents (see New York child custody laws), grandparent visitation (see New York grandparents' rights), adoption, emancipation, what happens to a person's estate after death (see New York probate), Family Court child-protection and foster-care cases, which are a separate track, or civil commitment and mental-health admissions.

New York's three guardianship tracks

The track depends on who needs a guardian and why.

Article 81 opens with the legislature's statement of purpose, which shapes how the rest of the article is read:

The legislature finds that it is desirable for and beneficial to persons with incapacities to make available to them the least restrictive form of intervention which assists them in meeting their needs but, at the same time, permits them to exercise the independence and self-determination of which they are capable.

N.Y. Mental Hyg. Law § 81.01

Under § 81.03(a), a guardian may be a person 18 or older, a corporation, or a public agency, including a local department of social services. The court must also consider "available resources," which § 81.03(e) defines to include "visiting nurses, homemakers, home health aides, adult day care and multipurpose senior citizen centers, powers of attorney, health care proxies, trusts, representative and protective payees, and residential care facilities."

How to get guardianship of a child in New York

The Surrogate's Court handles guardianship of minors under SCPA Article 17. Under § 1701, the court is "authorized and empowered to appoint a guardian of the person or of the property or of both of an infant whether or not the parent or parents of the infant or child are living."

Who may petition. Under § 1703, a petition "may be made by any person on behalf of the infant or if the infant be over the age of fourteen years, it may be made by the infant." A grandparent, aunt, uncle or family friend may therefore file on the child's behalf.

The child's preference. "If the youth is over the age of fourteen years, the court shall ascertain his or her preference for a suitable guardian," and where the youth is over 18, the youth must consent to the appointment (SCPA § 1706(1)).

Notice. Process issues to the child's parents (or, if there are none, grandparents within the county), to the person with whom the child lives, and to a child over 14 when someone else petitions (SCPA § 1705(1)). It is not required for a parent who has abandoned the child or has been judicially deprived of custody, among the other cases § 1705(2) lists.

The standard. The court must make a decree if it is "satisfied that the interests of the infant will be promoted by the appointment of a guardian" (§ 1707(1)). Before it does, it asks the Office of Children and Family Services whether the proposed guardian, or anyone 18 or older in that household, is the subject of an indicated report or a report under investigation in the statewide central register of child abuse and maltreatment (§ 1706(2)).

What the guardian decides. A guardian of a child has "the right and responsibility to make decisions, including issuing any necessary consents, regarding the child's protection, education, care and control, health and medical needs, and the physical custody of the person of the child" (§ 1706(1)).

When it ends. The appointment expires when the child turns 18, unless the young person consents to it continuing, in which case it expires at 21, and the court may vacate it earlier on the grounds § 1707(2) sets out.

Guardianship is not a custody case. A parent-versus-parent custody dispute is a separate proceeding, covered on our New York child custody laws page, and grandparent visitation is covered on New York grandparents' rights.

Foster care is a separate track. When the permanency goal for a foster child in a Family Court Act article 10 or 10-A proceeding is referral for legal guardianship, a petition by "a fit and willing relative or other suitable person shall be filed with the court before whom the most recent proceeding under article ten or ten-A of the family court act is pending" (SCPA § 1702(3)).

A child's money and property

A guardian of a child's property is generally bonded. Under SCPA § 1708(1), "all property of the infant shall be secured by bond as provided in this act," except as the section provides, and under § 1708(2)(a) the court "may dispense with a bond wholly or partly."

Can a parent name a guardian in a will in New York?

Under Domestic Relations Law § 81, a surviving parent may appoint a guardian of a child's person and property by deed or will. While both parents are living, either parent may by will appoint the other as guardian, or, with the other parent's acknowledged written consent, the other parent and a third person; an appointment by a parent's will is valid and effective if, when the will is admitted to probate, the other parent has died or has been adjudicated incompetent. The appointment does not take effect on its own. Under SCPA § 1710, a person may not act in New York as guardian of a child's person or property by virtue of an appointment in the will of the child's parent who was a domiciliary and died after the act took effect, "unless the will has been duly admitted to probate and recorded in the proper court and letters of guardianship have been issued thereon." Once the will is admitted to probate, the named guardian must qualify within 3 months or is deemed to have renounced the appointment, though the court may extend the time on good cause shown (SCPA § 1711(2), (4)). The will must go through probate first; our New York probate page covers that process.

Standby guardianship for a child

SCPA § 1726 lets a parent plan for a time when the parent may be unable to care for the child. Under the statute, "a parent, a legal guardian, a legal custodian, or primary caretaker ... may designate a standby guardian by means of a written designation, signed by the parent, legal guardian, legal custodian or primary caretaker in the presence of two witnesses at least eighteen years of age, other than the standby guardian, who shall also sign the writing."

A designation names the events on which the standby guardian is to become guardian: the parent becomes incapacitated, becomes debilitated and consents, becomes subject to an administrative separation (an immigration-related arrest, detention or removal, or official notice of immigration enforcement, as § 1726(1)(f) defines it) and consents, or dies (§ 1726(4)(b)(i)). Once the standby guardian's authority begins, the standby guardian must file a petition within 60 days, or the authority ceases after that date until a petition is filed (§ 1726(4)(c)). A parent may instead petition for a court appointment of a standby guardian (§ 1726(3)).

Letting a relative care for a child without going to court

General Obligations Law § 5-1551 lets a parent give another adult limited authority without a court order:

A parent of a minor or incapacitated person may designate another person as a person in parental relation to such minor or incapacitated person pursuant to sections twenty-one hundred sixty-four and twenty-five hundred four of the public health law and sections two and thirty-two hundred twelve of the education law for a period not exceeding twelve months provided that there is no prior order of any court in any jurisdiction currently in effect that would prohibit such parent from himself or herself exercising the same or similar authority, and provided further, that, in the case where a court has ordered that both parents must agree on education or health decisions regarding the child, a designation pursuant to this subdivision shall not be valid unless both parents have consented thereto.

N.Y. Gen. Oblig. Law § 5-1551

The designation must be in the form § 5-1552 prescribes. It is tied to the public health and education law sections it names, which deal with school and health-care matters. It is not a guardianship and does not give the designated person custody of the child.

How to become guardian of an adult under Article 81

The standard the court applies

Section 81.02 requires two things, among the other requirements of the article: that a guardian is necessary to provide for the person's personal needs or property management (§ 81.02(a)), and, where the person does not agree to the appointment, a finding of incapacity. The incapacity finding is defined in § 81.02(b):

The determination of incapacity shall be based on clear and convincing evidence and shall consist of a determination that a person is likely to suffer harm because: 1. the person is unable to provide for personal needs and/or property management; and 2. the person cannot adequately understand and appreciate the nature and consequences of such inability.

Both elements are required. Under § 81.12(a), the petitioner bears the burden of proof. And "in deciding whether the appointment is necessary, the court shall consider the report of the court evaluator ... and the sufficiency and reliability of available resources" to meet the person's needs without a guardian (§ 81.02(a)).

Who may petition

Section 81.06(a) lists who may start the proceeding. The list includes, among others, "a person otherwise concerned with the welfare of the person alleged to be incapacitated" and "the chief executive officer, or the designee of the chief executive officer, of a facility in which the person alleged to be incapacitated is a patient or resident."

The petition

The petition must be made under oath and must describe, among other things, "the alleged incapacitated person's functional level" and "the particular powers being sought and their relationship to the functional level and needs of the person alleged to be incapacitated" (§ 81.08(a)).

Notice and the hearing date

The proceeding starts with an order to show cause. The court must set the hearing "no more than twenty-eight days from the date of the signing of the order to show cause," and the order and a copy of the petition must be "personally delivered to the person alleged to be incapacitated not less than fourteen days prior to the hearing date" (§ 81.07).

The hearing must be held in the person's presence, at the courthouse or where the person lives, subject to the exceptions in § 81.11(c).

The court evaluator

"At the time of the issuance of the order to show cause, the court shall appoint a court evaluator" (§ 81.09(a)). The evaluator's duties include "investigating and making a written report and recommendations to the court" (§ 81.09(c)), and the court must consider that report in deciding whether a guardian is necessary (§ 81.02(a)).

A lawyer for the person

The person may choose a lawyer. Court-appointed counsel is required only in the situations § 81.10(c) lists:

The court shall appoint counsel in any of the following circumstances unless the court is satisfied that the alleged incapacitated person is represented by counsel of his or her own choosing: 1. the person alleged to be incapacitated requests counsel; 2. the person alleged to be incapacitated wishes to contest the petition; ... 5. the petition requests the appointment of a temporary guardian pursuant to section 81.23 of this article;

N.Y. Mental Hyg. Law § 81.10(c)

The subsection lists further circumstances as well. Outside the listed situations, appointment of counsel is not automatic.

Jury trial

Under § 81.11(f), if on or before the return date the person or the person's counsel "raises issues of fact regarding the need for an appointment under this article and demands a jury trial of such issues, the court shall order a trial by jury thereof. Failure to make such a demand shall be deemed a waiver of the right to trial by jury."

Limited guardianship and alternatives to a guardian

New York's default is a tailored order. If the court appoints a guardian, the order "shall be designed to accomplish the least restrictive form of intervention by appointing a guardian with powers limited to those which the court has found necessary" (§ 81.16(c)(2)).

The court does not always have to appoint anyone. If the person is found incapacitated, "the court without appointing a guardian, may authorize, direct, or ratify any transaction or series of transactions necessary to achieve any security, service, or care arrangement meeting the foreseeable needs of the incapacitated person" (§ 81.16(b)). Section 81.15 requires the court to make findings on the record that support its order.

Who serves as guardian

A person the alleged incapacitated person nominated under § 81.17 gets priority. Under § 81.19(b), "the court shall appoint a person nominated as the guardian in accordance with the provisions of section 81.17 of this article unless the court determines the nominee is unfit or the alleged incapacitated person indicates that he or she no longer wishes the nominee to be appointed."

Unless the court finds that no one else is available or willing to act, a person whose only interest is as a creditor, and a person other than a relative who provides (or works for a provider of) health care, day care, educational or residential services to the person, may not serve (§ 81.19(e)). Mental Hygiene Legal Service may not serve as guardian (§ 81.19(f)).

Each guardian must complete a training program approved by the chief administrator of the courts, unless the court waives some or all of it (§ 81.39(b), (c)), and the court "may require or dispense with the filing of a bond" (§ 81.25(a)).

What an Article 81 guardian can decide, and the rights the person keeps

An Article 81 guardian has only the powers in the court's order. The person keeps everything else:

(a) An incapacitated person for whom a guardian has been appointed retains all powers and rights except those powers and rights which the guardian is granted. (b) ... the appointment of a guardian shall not be conclusive evidence that the person lacks capacity for any other purpose, including the capacity to dispose of property by will.

N.Y. Mental Hyg. Law § 81.29

Where the person lives. Even a guardian with personal-needs powers faces a limit on facility placement. Under § 81.22(a), placement "in a nursing home or residential care facility ... or other similar facility shall not be authorized without the consent of the incapacitated person so long as it is reasonable under the circumstances to maintain the incapacitated person in the community, preferably in the home of the incapacitated person."

Acts no guardian may take. Under § 81.22(b)(1), no guardian may "consent to the voluntary formal or informal admission of the incapacitated person to a mental hygiene facility under article nine or fifteen of this chapter or to a chemical dependence facility under article twenty-two of this chapter."

Visits. "A guardian shall visit the incapacitated person not less than four times a year or more frequently as specified in the court order" (§ 81.20(a)(5)).

Guardian reports and property management

An Article 81 guardian answers to the court on a set schedule:

• Initial report. "No later than ninety days after the issuance of the commission to the guardian, the guardian shall file with the court that appointed the guardian a report in a form prescribed by the court" (§ 81.30(a)).
• Annual report. "Every guardian shall file a report annually in the month of May, or at any other time upon motion or order of the court" (§ 81.31(a)).
• Bond. The court may require or dispense with a bond (§ 81.25(a)).

Temporary guardianship in an emergency

Before a guardian is appointed, the court "may, upon showing of danger in the reasonably foreseeable future to the health and well being of the alleged incapacitated person, or danger of waste, misappropriation, or loss of the property of the alleged incapacitated person, appoint a temporary guardian for a period not to extend beyond the date of the issuance of the commission to a guardian appointed pursuant to this article" (§ 81.23(a)(1)).

The section measures a temporary guardianship by that event, not by a set number of days. When a temporary guardian is requested, the court must appoint counsel unless the person already has a lawyer of their own choosing (§ 81.10(c)(5)).

Ending an Article 81 guardianship or restoring rights

Section 81.36 governs discharging a guardian or modifying the guardian's powers. The burden of proof shifts depending on what is asked:

(d) To the extent that relief sought under this section would terminate the guardianship or restore certain powers to the incapacitated person, the burden of proof shall be on the person objecting to such relief.

N.Y. Mental Hyg. Law § 81.36(d)

So when the person under guardianship seeks to end the guardianship or get powers back, the person objecting carries the burden.

Article 17-A: guardianship for adults with intellectual or developmental disabilities

SCPA Article 17-A is a separate route that turns on professional certification. A person who is intellectually disabled is certified under § 1750(1), by one licensed physician and one licensed psychologist or by two licensed physicians, "as being incapable to manage him or herself and/or his or her affairs by reason of intellectual disability and that such condition is permanent in nature or likely to continue indefinitely." Under § 1750-a(1), a person who is developmentally disabled is one "who has been certified by one licensed physician and one licensed psychologist, or by two licensed physicians ... as having an impaired ability to understand and appreciate the nature and consequences of decisions which result in such person being incapable of managing himself or herself and/or his or her affairs by reason of developmental disability and that such condition is permanent in nature or likely to continue indefinitely," and the disability must also be attributable to cerebral palsy, epilepsy, neurological impairment, autism or traumatic head injury, to a condition closely related to intellectual disability, or to dyslexia resulting from one of those, and must originate before age 22, except for traumatic head injury (§ 1750-a(1)(a)-(d)).

The standard and the hearing. The court may appoint a 17-A guardian if the appointment "is in the best interest of" the person (§§ 1750, 1750-a(1)). The person has a right to a jury trial, waived if not demanded, but the court may in its discretion dispense with a hearing when the application is made by both parents or the survivor, by one parent with the other's consent, or by any interested party with each parent's consent (§ 1754(1)).

Health-care decisions. "Unless specifically prohibited by the court after consideration of the determination, if any, regarding a person who is intellectually disabled's capacity to make health care decisions," the guardian has "the authority to make any and all health care decisions" (SCPA § 1750-b(1)).

Changing the order. The person under guardianship, or anyone on that person's behalf, "may apply to the court having jurisdiction over the guardianship order requesting modification of such order" (SCPA § 1755).

Alternatives to guardianship in New York

Article 81 itself points toward alternatives: the court must weigh "the sufficiency and reliability of available resources" before appointing a guardian (§ 81.02(a)), and those resources include powers of attorney, health care proxies, trusts, and representative and protective payees (§ 81.03(e)).

Powers of attorney and health care proxies. These are signed while a person still has capacity. The signing rules are on our New York power of attorney laws page. Free drafting tools are available for a New York power of attorney and a New York advance directive; a tool is not legal advice, and any document must be signed under the New York rules on the power of attorney page.

Supported decision-making (Article 82). Mental Hygiene Law Article 82 sets out supported decision-making agreements, in which an adult names one or more supporters to help with decisions. Under § 82.10(b), an agreement must, among other requirements, "1. be in writing; 2. be dated; 3. designate the decision-maker, and at least one supporter; ... 8. be signed by all designated supporters; and 9. be executed or endorsed by the decision-maker in the presence of at least two adult witnesses who are not also designated as supporters, or with the attestation of a notary public."

Under § 82.11(b), a decision made with a supporter's help in accordance with an agreement "must, notwithstanding any other provision of law, be recognized as the decision or request of the decision-maker." That duty applies only to decisions made under agreements created through a recognized facilitation or education process under OPWDD's regulations and signed by a facilitator, and such an agreement must also include a statement that it was made through that process and an attached attestation by the decision-maker (§§ 82.09, 82.10(d), 82.11(a)).

Article 82's start date was tied to regulations. Its effective-date note makes it "Effective 90 days from the date that the regulations issued in accordance with § 1 of chapter 481 of 2022 appear in the New York State Register or the date such regulations are adopted, whichever is later." The Office for People With Developmental Disabilities (OPWDD) regulations, 14 NYCRR Part 634, appeared as adopted in the New York State Register on August 20, 2025, with an effective date of August 20, 2025 (I.D. No. PDD-31-24-00014-A), so that 90-day period has run and Article 82 is in effect.

Federal benefits. Social Security appoints its own representative payee when it decides representative payment is in a beneficiary's interest, and a legal guardian is one person it may choose rather than an automatic payee (20 C.F.R. § 404.2001(b)(2)); the guardianship hub covers the federal layer.

Moving to or from New York with a guardianship

New York adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act as Mental Hygiene Law Article 83 (§ 83.01). Section 83.31 governs transferring a New York guardianship to another state, and § 83.33 governs accepting a guardianship transferred from another state, by petition under Article 81 or SCPA Article 17-A. A guardian of the person appointed in another state may instead register the order in New York as a foreign judgment, after notifying the appointing court, if no guardianship petition is pending here (§ 83.35).

New York guardianship at a glance

Related New York pages

• Guardianship laws by state
• New York power of attorney laws
• New York child custody laws
• New York grandparents' rights
• New York probate
• Pennsylvania guardianship laws
• New Jersey guardianship laws

This article provides general legal information about New York guardianship law, not legal advice. Guardianship cases turn on their facts and on local court practice. For advice about a specific situation, contact a lawyer licensed in New York or the court that would hear the case.

Last updated: October 20, 2026.

Frequently Asked Questions

How do I get guardianship of my grandchild in New York?

Any person may petition the Surrogate's Court on a child's behalf for guardianship of the child's person, property or both under SCPA Article 17 (SCPA §§ 1701, 1703), whether or not the parents are living. The parents (or, if none, grandparents in the county), the person the child lives with and a child over 14 are served (§ 1705(1)), and the court appoints if satisfied the child's interests will be promoted (§ 1707(1)). If the child is over 14, the court must ascertain the child's preference for a suitable guardian (§ 1706(1)). The guardianship ends at 18, or at 21 if the young person consents to it continuing (§ 1707(2)).

Can a parent let a relative care for a child in New York without going to court?

A parent may designate another person as a person in parental relation for the school and health-care purposes named in General Obligations Law § 5-1551, for a period not exceeding 12 months, in the form § 5-1552 prescribes. It is not available if a court order in effect would bar the parent from exercising the same or similar authority, and where a court has ordered both parents to agree on education or health decisions, both must consent. It is not a guardianship or custody order.

Does a guardian named in a will take over automatically in New York?

No. Domestic Relations Law § 81 lets a surviving parent appoint a guardian by deed or will (while both parents are living, a will may appoint the other parent, or the other parent and a third person with the other parent's acknowledged written consent). Under SCPA § 1710, a guardian appointed in a parent's will may act only after the will is admitted to probate and recorded in the proper court and letters of guardianship are issued, and under § 1711(2) the guardian must then qualify within 3 months or is deemed to have renounced, unless the court extends the time.

What must be proved for Article 81 guardianship in New York?

Clear and convincing evidence that the person is likely to suffer harm because the person cannot provide for personal needs or property management and cannot adequately understand and appreciate that inability (N.Y. Mental Hyg. Law § 81.02(b)). The petitioner carries the burden (§ 81.12(a)).

Does the person get a lawyer in a New York guardianship case?

Under Article 81, the court shall appoint counsel in the circumstances § 81.10(c) lists, such as when the person requests counsel, wishes to contest the petition or a temporary guardian is sought, unless the person already has counsel of their own choosing. Counsel is not appointed in every case.

What is the difference between Article 81 and Article 17-A guardianship?

Article 81 of the Mental Hygiene Law covers adults found incapacitated by clear and convincing evidence and limits the guardian to the powers found necessary. SCPA Article 17-A covers persons certified by two physicians or a physician and a psychologist as intellectually disabled (§ 1750) or developmentally disabled (§ 1750-a); the court appoints when the appointment is in the person's best interest, and it may dispense with a hearing on an application by the parents or with their consent (§ 1754(1)). A guardian of a person who is intellectually disabled has health-care decision authority unless the court prohibits it (§ 1750-b(1)).

How long does a temporary guardianship last in New York?

Under Mental Hygiene Law § 81.23(a)(1), a temporary guardian serves for a period not extending beyond the date the commission issues to the guardian appointed under Article 81. The statute does not set a number of days.

Can a New York guardian move the person into a nursing home?

Not without the person's consent so long as it is reasonable under the circumstances to keep the person in the community, preferably in the person's own home (N.Y. Mental Hyg. Law § 81.22(a)).

Is supported decision-making available in New York?

Yes. Mental Hygiene Law Article 82 sets out supported decision-making agreements. It took effect 90 days after OPWDD's implementing regulations (14 NYCRR Part 634) appeared in the State Register on August 20, 2025. The duty of third parties to honor decisions under § 82.11 applies only to agreements made through a recognized facilitation or education process and signed by a facilitator.

How can a New York guardianship be ended?

Under Mental Hygiene Law § 81.36, the court may discharge a guardian or modify the guardian's powers, and where the relief sought would end the guardianship or restore powers, the burden of proof is on the person objecting (§ 81.36(d)).