How to Start an Article 81 Case

To start an Article 81 Guardianship case for an alleged incapacitated person, the person filing the case (the petitioner) must complete the following 4 steps:

1. Fill out these court forms:

  • a petition: A petition is a written request asking the court to start a case. The petition also gives the petitioner the opportunity to explain why they believe a guardian is necessary, who should be the guardian, and for what purpose.

  • an order to show cause: An order to show cause is a written request asking the court to do something quickly. In this instance, the petitioner is asking the judge to appoint an Article 81 guardian. The order to show cause will be used to inform the alleged incapacitated person that an Article 81 application has been filed in court for the appointment of an Article 81 guardian to make decisions regarding their personal needs, property, or both. It also explains the alleged incapacitated person’s legal rights, lists the powers the petitioner believes the guardian should have over them, and provides the date, time, and place of the hearing.

  • a request for judicial intervention: A request for judicial intervention is a request for a judge to be assigned to the case.

You can obtain the forms listed above by visiting the Clerk's Office located inside the Supreme Court or County Court in the county where the alleged incapacitated person is living. If you are unable to visit the Clerk's Office, you can contact them by phone. Use the Court Locator box on this page to locate the appropriate court and contact information.

If you have questions about completing these forms, you can ask a clerk in the Clerk’s Office or go to a Court Help Center, if available, for assistance. To find out more information about Court Help Centers and where they are located, see Court Help Centers and Community Organizations.

2. File the Petition

The petitioner may be able to file a guardianship petition, order to show cause and request for judicial intervention over the internet using NYSCEF, the New York State Courts Electronic Filing system. To see if this option is available, check the e-filing County List. If electronic filing is not possible, the petitioner should ask the Clerk’s Office what other options are available for filing.

3. Pay the filing fee and index number fee

The petitioner must pay a fee to start a guardianship case. However, they may qualify for a waiver. For more information, see Filing Fees and Fee Waiver.

4. Serve the papers

Service means delivering legal papers to all the people who are part of a case. Service is both important and required because it tells the alleged incapacitated person and all interested parties about the Article 81 case.

To successfully serve the legal papers, the petitioner must:

  • deliver the petition and order to show cause to the alleged incapacitated person, in the manner required by law
  • fax or scan a copy of the petition and the order to show cause to the court evaluator and the alleged incapacitated person's attorney, if any
  • mail a copy of the order to show cause to all interested parties. The interested parties will be listed in the order to show cause form.

All papers must be served within the time frame stated by the court. For more information on how to legally serve a person, see How Legal Papers are Delivered.

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