Guardianship Definitions

Guardianship

AIP (Alleged Incapacitated Person): refers to the person in an Article 81 proceeding for whom a guardian is sought. The Court must determine that the person is unable to provide in some manner for himself/herself (i.e. incapacitated) for a guardian to be appointed. The person is referred to as the “alleged incapacitated person” until the court so determines, and is called the “incapacitated person” or “IP” after. If the person consents to the appointment of a guardian, the person may be referred to as a “person in need of a guardian” rather than as an incapacitated person.

Article 17A Proceeding: refers to Article 17A of the Surrogates Court Procedure Act Article 17A. Proceeding to appoint a guardian for a developmentally disabled individual, or a mentally retarded individual, or someone suffering from similar conditions who is certified as such prior to his/her 22nd birthday.

Article 81 Proceeding: refers to Article 81 of the Mental Hygiene Law (“MHL”). An Article 81 Proceeding is held to first determine whether a person is incapacitated by clear and convincing evidence, the highest standard of proof. It must be shown that the “Alleged Incapacitated Person, or “AIP” is unable to manage his or her personal needs or financial affairs and that he/she is unable to appreciate the resulting danger this inability causes for a guardian to be appointed. If so, that person will be deemed an “Incapacitated Person” (or “IP”). A guardian will then be appointed for the IP consistent with that IP’s needs and best interests, e.g. to assist with property management needs, such as maintaining bank accounts and paying bills, or personal needs, such as ensuring the IP is safe and provided for, or for both property management and personal needs.

Court Evaluator: person who acts as the “eyes and ears” of the court in an Article81 proceeding prior to appointment of a guardian. The court evaluator may be the only objective person in the guardianship proceeding to meet with the AIP. He or she then prepares a report for the court and recommends whether or not a guardian should be appointed.

Court Examiner: reviews the guardian’s reports on behalf of the Court in an Article 81 proceeding after the guardian is appointed.

Designation of Standby Guardian: appointment of an individual to act as guardian in the event that the nominated guardian is unable to act. Appointment is made by a nominating form, and requires the standby guardian to seek confirmation from the Surrogate’s Court within 60 days of appointment.

Guardian: The guardian is appointed to provide for the personal needs and or the property management needs of a person who is found to be incapacitated consistent with the Order appointing the guardian.

Guardian ad litem: court appointed guardian to represent the interests of a minor or incompetent in a court proceeding.