Guardianship of a Child or Adult in New York

Guardianship of a minor's person can be sought in Surrogate's Court, County Court or Family Court; Family Court applies the Surrogate's Court Procedure Act. The court appoints a guardian, or issues temporary letters, if satisfied that the child's interests will be promoted by the appointment, and it may appoint someone other than a parent or the person the petitioner nominated. The court must consider any child abuse register or child protective history of the child, the proposed guardian, the petitioner, or adults in the proposed guardian's home. A person under 21 may consent to a guardianship continuing after 18. Family Court may also appoint a permanent guardian when the child is in agency custody or both parents whose consent would be needed for adoption have died.

Under Mental Hygiene Law Article 81, the court may appoint a guardian if it is necessary to provide for the person's personal needs (food, clothing, shelter, health care, safety) or property management, and the person either agrees or is found incapacitated. Incapacity must be shown by clear and convincing evidence that the person is likely to suffer harm because he or she cannot provide for personal needs or manage property and cannot adequately understand and appreciate the consequences. The court focuses on functional limitations, considers the court evaluator's report and whether sufficient and reliable available resources make a guardian unnecessary, and grants only the powers needed as the least restrictive form of intervention.