New York Laws
Article 81 - Proceedings for Appointment of a Guardian for Personal Needs or Property Management
81.21 - Powers of Guardian; Property Management.

(a) Consistent with the functional limitations of the incapacitated
person, that person's understanding and appreciation of the harm that he
or she is likely to suffer as the result of the inability to manage
property and financial affairs, and that person's personal wishes,
preferences, and desires with regard to managing the activities of daily
living, and the least restrictive form of intervention, the court may
authorize the guardian to exercise those powers necessary and sufficient
to manage the property and financial affairs of the incapacitated
person; to provide for the maintenance and support of the incapacitated
person, and those persons depending upon the incapacitated person; to
transfer a part of the incapacitated person's assets to or for the
benefit of another person on the ground that the incapacitated person
would have made the transfer if he or she had the capacity to act.
Transfers made pursuant to this article may be in any form that the
incapacitated person could have employed if he or she had the requisite
capacity, except in the form of a will or codicil.
Those powers which may be granted include, but are not limited to, the
power to:
1. make gifts;
2. provide support for persons dependent upon the incapacitated person
for support, whether or not the incapacitated person is legally
obligated to provide that support;
3. convey or release contingent and expectant interests in property,
including marital property rights and any right of survivorship
incidental to joint tenancy or tenancy by the entirety;
4. exercise or release powers held by the incapacitated person as
trustee, personal representative, guardian for minor, guardian, or donee
of a power of appointment;
5. enter into contracts;
6. create revocable or irrevocable trusts of property of the estate
which may extend beyond the incapacity or life of the incapacitated
person;
7. exercise options of the incapacitated person to purchase securities
or other property;
8. exercise rights to elect options and change beneficiaries under
insurance and annuity policies and to surrender the policies for their
cash value;
9. exercise any right to an elective share in the estate of the
incapacitated person's deceased spouse;
10. renounce or disclaim any interest by testate or intestate
succession or by inter vivos transfer consistent with paragraph (d) of
section 2-1.11 of the estates, powers and trusts law;
11. authorize access to or release of confidential records;
12. apply for government and private benefits;
13. marshall assets;
14. pay the funeral expenses of the incapacitated person;
15. pay such bills as may be reasonably necessary to maintain the
incapacitated person;
16. invest funds of the incapacitated person as permitted by section
11-2.3 of the estates, powers and trusts law;
17. lease the primary residence for up to three years;
18. retain an accountant;
19. pay bills after the death of the incapacitated person provided the
authority existed to pay such bills prior to death until a temporary
administrator or executor is appointed; and
20. defend or maintain any judicial action or proceeding to a
conclusion until an executor or administrator is appointed.

The guardian may also be granted any power pursuant to this
subdivision granted to committees and conservators and guardians by
other statutes subject to the limitations, conditions, and
responsibilities of the exercise thereof unless the granting of such
power is inconsistent with the provisions of this article.
(b) If the petitioner or the guardian seeks the authority to exercise
a power which involves the transfer of a part of the incapacitated
person's assets to or for the benefit of another person, including the
petitioner or guardian, the petition shall include the following
information:
1. whether any prior proceeding has at any time been commenced by any
person seeking such power with respect to the property of the
incapacitated person and, if so, a description of the nature of such
application and the disposition made of such application;
2. the amount and nature of the financial obligations of the
incapacitated person including funds presently and prospectively
required to provide for the incapacitated person's own maintenance,
support, and well-being and to provide for other persons dependent upon
the incapacitated person for support, whether or not the incapacitated
person is legally obligated to provide that support; a copy of any court
order or written agreement setting forth support obligations of the
incapacitated person shall be attached to the petition if available to
the petitioner or guardian;
3. the property of the incapacitated person that is the subject of the
present application;
4. the proposed disposition of such property and the reasons why such
disposition should be made;
5. whether the incapacitated person has sufficient capacity to make
the proposed disposition; if the incapacitated person has such capacity,
his or her written consent shall be attached to the petition;
6. whether the incapacitated person has previously executed a will or
similar instrument and if so, the terms of the most recently executed
will together with a statement as to how the terms of the will became
known to the petitioner or guardian; for purposes of this article, the
term "will" shall have the meaning specified in section 1-2.19 of the
estates, powers and trusts law and "similar instrument" shall include a
revocable or irrevocable trust:
(i) if the petitioner or guardian can, with reasonable diligence,
obtain a copy, a copy of the most recently executed will or similar
instrument shall be attached to the petition; in such case, the petition
shall contain a statement as to how the copy was secured and the basis
for the petitioner or guardian's belief that such copy is a copy of the
incapacitated person's most recently executed will or similar
instrument.
(ii) if the petitioner or guardian is unable to obtain a copy of the
most recently executed will or similar instrument, or if the petitioner
or guardian is unable to determine whether the incapacitated person has
previously executed a will or similar instrument, what efforts were made
by the petitioner or guardian to ascertain such information.
(iii) if a copy of the most recently executed will or similar
instrument is not otherwise available, the court may direct an attorney
or other person who has the original will or similar instrument in his
or her possession to turn a photocopy over to the court for its
examination, in camera. A photocopy of the will or similar instrument
shall then be turned over by the court to the parties in such proceeding
unless the court finds that to do so would be contrary to the best
interests of the incapacitated person;

7. a description of any significant gifts or patterns of gifts made by
the incapacitated person;
8. the names, post-office addresses and relationships of the
presumptive distributees of the incapacitated person as that term is
defined in subdivision forty-two of section one hundred three of the
surrogate's court procedure act and of the beneficiaries under the most
recent will or similar instrument executed by the incapacitated person.
(c) Notice of a petition seeking relief under this section shall be
served upon:
(i) the persons entitled to notice in accordance with paragraph one of
subdivision (e) of section 81.07 of this article;
(ii) if known to the petitioner or guardian, the presumptive
distributees of the incapacitated person as that term is defined in
subdivision forty-two of section one hundred three of the surrogate's
court procedure act unless the court dispenses with such notice; and
(iii) if known to the petitioner or guardian, any person designated in
the most recent will or similar instrument of the incapacitated person
as beneficiary whose rights or interests would be adversely affected by
the relief requested in the petition unless the court dispenses with
such notice.
(d) In determining whether to approve the application, the court shall
consider:
1. whether the incapacitated person has sufficient capacity to make
the proposed disposition himself or herself, and, if so, whether he or
she has consented to the proposed disposition;
2. whether the disability of the incapacitated person is likely to be
of sufficiently short duration such that he or she should make the
determination with respect to the proposed disposition when no longer
disabled;
3. whether the needs of the incapacitated person and his or her
dependents or other persons depending upon the incapacitated person for
support can be met from the remainder of the assets of the incapacitated
person after the transfer is made;
4. whether the donees or beneficiaries of the proposed disposition are
the natural objects of the bounty of the incapacitated person and
whether the proposed disposition is consistent with any known
testamentary plan or pattern of gifts he or she has made;
5. whether the proposed disposition will produce estate, gift, income
or other tax savings which will significantly benefit the incapacitated
person or his or her dependents or other persons for whom the
incapacitated person would be concerned; and
6. such other factors as the court deems relevant.
(e) The court may grant the application if satisfied by clear and
convincing evidence of the following and shall make a record of these
findings:
1. the incapacitated person lacks the requisite mental capacity to
perform the act or acts for which approval has been sought and is not
likely to regain such capacity within a reasonable period of time or, if
the incapacitated person has the requisite capacity, that he or she
consents to the proposed disposition;
2. a competent, reasonable individual in the position of the
incapacitated person would be likely to perform the act or acts under
the same circumstances; and
3. the incapacitated person has not manifested an intention
inconsistent with the performance of the act or acts for which approval
has been sought at some earlier time when he or she had the requisite
capacity or, if such intention was manifested, the particular person

would be likely to have changed such intention under the circumstances
existing at the time of the filing of the petition.
(f) Nothing in this article imposes any duty on the guardian to
commence a special proceeding pursuant to this article seeking to
transfer a part of the assets of the incapacitated person to or for the
benefit of another person and the guardian shall not be liable or
accountable to any person for having failed to commence a special
proceeding pursuant to this article seeking to transfer a part of the
assets of the incapacitated person to or for the benefit of another
person.

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