While it is widely known in the legal community that a guardian may be nominated pursuant to Article 81 of the Mental Hygiene Law (MHL), it may not be common knowledge that Surrogate’s Court Procedure Act (SCPA) Article 4 provides for a nomination process as well for a guardian ad litem (GAL). This article focuses on the nomination process of a guardian ad litem in the Surrogate’s Court. While both statutes allow for the incapacitated or incompetent person to have a say in the nomination of the individual’s guardian, the procedure to nominate a GAL through SCPA Article 4 is comparable to that of an Article 81 guardian. However, in Surrogate’s practice most practitioners leave it to the court to make the appointment.

Purpose of Article 81 and Article 4

The purpose of Article 81 guardianships is for the betterment of the allegedly incapacitated person’s (AIP) life. Such a task is achieved by balancing the areas of the AIP’s life that require assistance while still maintaining the individual’s independence as much as possible. MHL 81.01. An AIP’s participation in the nomination process for its guardian aligns with this goal because the AIP is afforded control by statute and through the court itself. To maintain such a difficult balance, Article 81 demands strict procedural requirements, such as a hearing to adjudicate whether the AIP is indeed incapacitated and a determination by court order as to the specific powers over the persons and/or the AIP’s property, depending on the AIP’s daily needs. See MHL 81.06, 81.07. The AIP’s civil rights are protected.

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