Contested Guardianship FAQ

A contested guardianship is a legal dispute that happens when interested parties formally object to a petition for guardianship or the actions of a guardian who has already been put in place. Generally, these disputes may arise when there are questions about whether a guardian is needed, whether the person appointed is appropriate for the role, or possible mismanagement of a ward by the guardian.

Interested parties can challenge a Mental Hygiene Law Article 81 guardianship proceeding. These can include the alleged incapacitated person (the potential ward or ward), the appointed guardian or other people worried about the well-being of the ward such as adult children, parents, spouses, sisters or brothers, close friends, caregivers or others have a direct interest and valid grounds to contest the arrangement. A court evaluator or attorney for the alleged incapacitated person can bring up concerns about the scope or need for a guardianship. 

Guardianship proceedings are begun when an interested party files a petition with the Court that complies with the content requirements of the New York Mental Hygiene Law (MHL) Section 81.08. They must specify the circumstances of the alleged interested party’s standing and the demonstrate a prima facie case with clear and convincing evidence. A person needs to be incapacitated for the appointment of a guardian in order to care for the ward’s personal needs and property management. An interested person with grounds to contest the proceeding may do so.

Grounds for Challenging a guardianship may focused on showing that a guardian is not needed because the ward is not disabled or incapacitated or that there are less restrictive alternatives, whereby the ward’s best interest is not served by the appointment of a guardian.

Less restrictive alternatives can include a power of attorney or health care proxy. When there are alternate and advance directives—a living trust, a health care proxy, or a durable power of attorney—that were put in place before the alleged incapacitated person became incapacitated, the court may not establish a guardianship.

Disputes that may arise in connection with a guardianship include disputes about incapacity, disputes about the scope of the guardianship, and disputes about a person’s fitness to serve as guardian.

You can contest a guardianship on the grounds that a guardian is inappropriate if you are an interested party who believes and has evidence that the proposed guardian or existing guardian cannot or does not adequately care for the allegedly incapacitated person’s needs or has become improperly involved with the allegedly incapacitated person’s property or other assets. In some cases, different family members may dispute each other’s appointment, feeling that the other family member is unsuitable. These disputes can become particularly heated, and it’s important to retain a lawyer who is sensitive to the family dynamics. To show incapacity, a court will examine the ability of an alleged incapacitated person to handle activities of daily living.