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Article 81 Guardianship Litigation: Removing a Guardian

By Stephanie L. Goldstein, Esq.

A guardian has been appointed for you.  What happens if you don’t like your guardian?  Guardianships, or conservatorships as they are referred to in some states, have come under intense scrutiny in light of the Britney Spears conservatorship.  There are numerous elements to Spears’ conservatorship to explore, including requesting authority to hire an attorney, removing a guardian, and ending a guardianship.

In New York, a person who is the subject of a guardianship proceeding commenced under the Mental Hygiene Law is referred to as the Alleged Incapacitated Person (“AIP”).  A guardianship must be tailored to the individual needs of the AIP by considering the personal wishes, preferences, and desires of the person.  In New York, there is a very high standard to meet to persuade a court to remove a guardian.  Mental Hygiene Law §81.35 states that a “court appointing a guardian may remove such guardian when the guardian fails to comply with an order, is guilty of misconduct or for any other which to the court shall appear just.”

Courts in New York will look to appoint family members and/or close friends of the AIP.  If a family member is appropriate or there is no one else either available or willing to act as guardian, the court will appoint an independent guardian.  At this point, the AIP is referred to as the Incapacitated Person (“IP”).  Circumstances and relationships do change as time passes.  Not getting along with your guardian, however, is generally not a convincing argument when an application to remove a guardian is before the court.  If a person can present evidence that the relationship with the guardian is so toxic that it is detrimental to the IP’s health and property, then the court will consider this and determine whether appointing another to serve as guardian is appropriate.

Spears has made a compelling case for removal of her father in the court of public opinion.  The judge overseeing her case in a court of law has scrutinized the acts of Spears’ father taken as her conservator.  In New York, a guardianship is intended to be the least restrictive means of intervention and the last resort employed to protect the IP and prevent abuse by others.  If the court finds evidence of either abuse or other misconduct, removal of the guardian may be the proper remedy.

If you have any questions regarding the process, contact the attorneys at Littman Krooks LLP to discuss whether guardianship is the appropriate route and the standards necessary to amend the terms of and/or terminate a guardianship.


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