Contested Guardianship Attorney in New York City
When a family disagrees about whether a loved one needs a guardian, who should serve, or how a guardian is handling the job, a judge has to decide. Law Offices of Vlad Portnoy represents New York City families in contested guardianship cases, from objecting to a petition to removing a guardian who is not doing the job.
When Does a Guardianship Become Contested?
A guardianship is contested when someone with a stake in the case disagrees with what is being asked of the court. Most disputes fall into one of these situations. If you are starting a guardianship and no one objects, our guardianship attorney in NYC page explains the full process.
You don’t believe a guardian is needed
Your loved one can still manage with some help, or a valid power of attorney and health care proxy already cover what is needed.
POA vs. guardianshipThe petition is about you
You have been served with guardianship papers and want to keep making your own decisions. New York law gives you the right to a lawyer and to be heard.
Your rightsFamily members disagree about who should serve
Siblings, a spouse or a partner each want to be the guardian, or object to the person proposed in the petition.
The powers requested go too far
The petition asks to sell a home, move someone to a nursing home, or control all of their finances when only part of that is needed.
Concerns about a current guardian
Missed court reports, spending that can’t be explained, neglect, or a guardian who stops communicating with the family.
Signs of exploitationA guardianship that should change or end
Your loved one has improved, their situation has changed, or the guardian’s powers no longer fit what they need.
A dispute over a power of attorney
An agent is accused of misusing their authority, or a relative asks the court to appoint a guardian in place of the agent.
Revoking a POAObjections in an Article 17-A case
A relative disagrees with a guardianship for an adult with a developmental disability, or wants the guardianship changed.
Article 17-A
What to Expect When a Guardianship Is Contested in New York
A contested case follows the same court steps as any Article 81 guardianship, the guardianship proceedings in New York laid out in the Mental Hygiene Law. The difference is that each step becomes a chance to raise objections, present evidence and argue for a different result.
Raising an Objection
The person the petition is about, their family and others who receive notice can oppose the petition, ask the court to limit the powers requested, or propose a different guardian. Objections can be filed in writing, and a family member who wants to serve instead can file a cross-petition. Because the hearing is set within weeks of the petition being signed, objections need to be prepared quickly.
Your Rights if the Petition Is About You
New York gives the person alleged to need a guardian strong protections:
- Notice. The petition and the order to show cause must be personally delivered to you at least 14 days before the hearing.
- A lawyer. The court appoints a lawyer for you when you ask for one, when you want to contest the petition, or when you don’t agree to certain powers being requested, such as moving you to a nursing home (Mental Hygiene Law § 81.10).
- To be present. The hearing takes place in your presence, at the courthouse or where you live if you can’t travel.
- To present your side. You can present evidence, call witnesses and question the other side’s witnesses.
- A jury. You can demand a jury trial on the facts, as long as you ask on or before the return date of the order to show cause (§ 81.11).
The Court Evaluator
The judge appoints a court evaluator, an independent person who meets with your loved one, explains their rights, speaks with family members, reviews records and reports to the court. The report covers whether a guardian is needed, what powers would be appropriate, and whether a less restrictive option would work (§ 81.09). In a contested case, the evaluator’s findings often carry significant weight, so it matters that they see the full picture.
The Hearing and the Burden of Proof
The person asking for a guardian must prove, by clear and convincing evidence, that your loved one is likely to suffer harm because they cannot manage their personal needs or property and don’t understand the consequences of that inability (§ 81.12 and § 81.02). The court must also choose the least restrictive form of help. That is often where contested cases are won or lost: showing that an existing power of attorney, help from family or a limited guardianship is enough. Doctors, family members, the court evaluator and other witnesses may testify, and a contested case can take more than one hearing date.
Possible Outcomes
| Outcome | What it means |
|---|---|
| Petition dismissed | No guardian is appointed, for example because the person can manage or an existing power of attorney and health care proxy are enough. |
| Limited guardianship | A guardian is appointed only for specific decisions, and the person keeps every other right. |
| A different guardian | The court appoints someone other than the person proposed, which can include a neutral professional guardian when family members cannot agree. |
| Split roles | One person is appointed for personal needs and another for property management. |
| An agreement | The parties settle on who serves and which powers are granted, and the court approves the agreement. |
When There Is Already a Guardian
Disputes don’t end once a guardian is appointed. The court that appointed the guardian can remove them if they fail to follow a court order, are guilty of misconduct, or for any other cause the court finds just (§ 81.35). The court must also discharge the guardian or change their powers when the person no longer needs that level of help, for example after they recover (§ 81.36). Family members can ask the court to review the guardian’s reports and accounts, replace the guardian, or change or end the guardianship. The New York Courts explain these options in Ending or Changing a Guardianship.
Article 17-A Disputes
Guardianships for adults with intellectual or developmental disabilities under Article 17-A are heard in Surrogate’s Court, with their own rules for objections and changes. Learn more about Article 17-A guardianship.
The Law Behind Contested Guardianships
| Mental Hygiene Law section | What it covers |
|---|---|
| § 81.02 | When a guardian can be appointed, and the least restrictive form of help |
| § 81.09 | The court evaluator and their report |
| § 81.10 | When the court appoints a lawyer for the person |
| § 81.11 | The hearing, the person’s presence and the right to a jury |
| § 81.12 | The decision and the clear and convincing evidence standard |
| § 81.23 | Temporary guardians and orders while the case is pending |
| § 81.35 | Removing a guardian |
| § 81.36 | Ending a guardianship or changing the guardian’s powers |
Our Approach to Contested Guardianships
Guardianship disputes are among the most emotional cases a family can go through. Our goal is to protect the person at the center of the case and to resolve the disagreement with as little lasting damage to the family as possible, in court when that is what it takes.
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Understand the full picture
Before taking a position, we review the medical records, finances, existing documents such as a power of attorney, health care proxy or will, and the family history. The real issues in a guardianship case often only become clear once we start digging.
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Look for a less restrictive solution
A valid power of attorney, a limited guardianship or an agreement on who serves can resolve many disputes without a full trial, and the law favors the least restrictive option.
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Build the evidence
Medical opinions, financial records and witnesses that show the court what your loved one can and cannot do, or what a current guardian has and has not done.
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Work with the court evaluator
We make sure the evaluator has the records and the context they need, so their report reflects the facts.
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Represent you at the hearing
We present the evidence, question witnesses and, when it serves the case, request a jury.
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Stay with you after the decision
From the guardian’s reports and court approvals to Medicaid planning, elder law needs and, when the time comes, probate.
We represent: the person the petition is about · family members who object or want someone else to serve · petitioners facing objections · family members asking the court to remove, replace or review a guardian. Every case is led by Vlad Portnoy, Esq. See how we work with every client.
How Long Does a Contested Guardianship Case Take in New York?
The law moves the first hearing quickly: it must be held within 28 days of the judge signing the order to show cause. A contested case usually takes longer than an uncontested one, because there is more to prove and more people to hear from. The main factors are:
- How many people object, and on how many points: whether a guardian is needed, who serves, or which powers.
- Medical and expert evidence, including the time needed to gather records and schedule testimony.
- Financial records, especially when a current guardian’s or an agent’s spending is in question.
- A jury demand, which adds a trial on the facts.
- The court’s calendar. New York City courts handle a high volume of cases.
- Whether the parties reach an agreement, which can shorten the case considerably.
If your loved one is at immediate risk while the dispute is decided, the court can appoint a temporary guardian with limited powers (§ 81.23). Learn more about emergency guardianship in New York. Contested cases also cost more than uncontested ones; our guide to guardianship costs in New York explains the court costs and who usually pays.
Facing a Guardianship Dispute? Talk to a New York Guardianship Lawyer
If you have been served with a guardianship petition, or you are worried about how a guardian is handling a loved one’s care or money, don’t wait: the hearing is usually set within weeks. Tell us what is happening and we will explain your options in a free consultation, in person or by video.
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Contested Guardianship FAQs
You can oppose it. The judge appoints a guardian only if the petitioner proves the need by clear and convincing evidence and nothing less restrictive will work. Showing that the person can manage, or that a valid power of attorney and health care proxy already cover their needs, can lead the court to dismiss the petition or grant only limited powers.
Yes. They can hire their own lawyer, and the court appoints one when they ask for it, when they want to contest the petition, or in certain other situations listed in Mental Hygiene Law § 81.10.
Yes. The person alleged to need a guardian can demand a jury trial on the facts, as long as the demand is made on or before the return date of the order to show cause.
By asking the court that appointed the guardian to remove them. Under § 81.35, the court can remove a guardian who fails to follow a court order, is guilty of misconduct, or for any other cause it finds just. The court can also order the guardian to account for the money they manage.
Yes. Under § 81.36, the court must discharge the guardian or change their powers when the person can once again manage some or all of their needs. The person, the guardian or another interested person can ask the court to review it.
The judge decides, based on what is best for the person. The court can choose one of the family members, split the roles between two people, or appoint a neutral professional guardian.
It can, if it was signed while the person had capacity, gives enough authority, and the agent is acting properly. If the agent is misusing their authority, a guardianship may be the way to protect the person.
The court decides. Depending on the outcome, fees may be paid by the parties or from the assets of the person under guardianship. Our guardianship cost guide explains the general court costs.