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What you need to know about Article 81 guardianship

Adults generally have the right and responsibility to make decisions for themselves and to manage their own affairs. However, some adults are unable to do so due to incapacitation.

Under these circumstances, an individual can file for the appointment of a guardian for the incapacitated adult. According to the New York State Unified Court System, this is an Article 81 case.

Who can file an Article 81 case?

Most often, the one who does the filing, also known as the petitioner, is a qualified agency or a member of the individual’s family. However, the only requirement is that the person who files must be over the age of 18.

What are the responsibilities of an Article 81 guardian?

The court determines what each guardian is responsible for on a case-by-case basis. Whenever the court appoints an Article 81 guardian, it delineates whether he or she will be responsible for property or personal needs. The court may also appoint a guardian to help manage both.

Why might a person need an Article 81 guardian?

There are two criteria used to determine whether a person needs an Article 81 guardian due to incapacitation. The court must decide whether the individual is capable of caring for his or her own personal needs or property. If not, the court will evaluate whether a lack of understanding of the consequences of not being able to care for personal needs or property could cause harm to the individual.

A hearing takes place to determine whether the appointment of an Article 81 guardianship is appropriate. In the interim, the court refers to the individual as an alleged incapacitated person, giving him or her the benefit of the doubt until the process is complete.

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