Skip to Content
New York & North Carolina

What Are the Legal Requirements for Determining Incapacity for Adult Guardianship?


Declaring Adults Incapacitated for Guardianship

Guardianship refers to the legal process of a court-appointed relationship between a capable adult and a person over the age of eighteen who has a disability preventing them from being able to make informed decisions or is unable to manage their own affairs without risk to themselves or others. Adults are considered competent unless otherwise declared by the court as incapacitated. Article 81 of New York’s Mental Hygiene Law is focused on individuals who were once competent but have become debilitated from a cognitive or functional limitation. Article 81 may also be pursued for an intellectually disabled or developmentally disabled individual who may not fit into the requirements for a 17-A guardianship. Once a petition for guardianship is filed with the court, a hearing date will be scheduled. During the hearing, the petitioner must provide convincing evidence that the incapacitated person is unable to manage their personal and/or financial affairs.

Legal Requirements for Determining Incapacity

While the legal requirements for determining incapacity vary some of the key issues generally assessed include:

  • What is the Medical and Physical Condition of the Individual? An evaluation of the individual’s physical and medical condition can help determine the causes for the individual’s incapacity. This information can also assist in determining the type of assistance needed.
  • Can the Individual Manage Daily? This evaluation can help determine if the individual is able to manage their home, health, finances, and other daily activities.
  • Is the Individual A Danger to Themselves and/or Others?
  • What Are the Individuals’ Cognitive Abilities? The evaluation of the individual’s cognitive functioning may include, intelligence, comprehension, problem-solving, memory, and decision making

Types of Powers That May Be Granted to Guardians

Should the court decide to grant guardianship, the power given to the guardian may be limited depending on the mental capacity of the person involved. Types of power granted to guardians may include:

  • The authority to pay the bills for an incapacitated person
  • The power necessary to prevent self-neglect
  • The authority to stop physical abuse
  • The authority to engage in medical planning
  • The authority to engage in tax planning