There is a common misconception among adult guardianship attorneys, even some of the most experienced, that a “PING” designation in an Article 81 guardianship proceeding, by its very nature, equates to less power for the guardian than an Incapacitated Person (IP) designation.

An PING (an abbreviation for a Person in Need of a Guardian) is an Alleged Incapacitated Person (AIP) who consents to the appointment of a guardian.

The consent of the AIP takes the place of the finding of incapacity. It does not disturb the court’s authority to choose the powers of the guardian, at least according to one case.

Mental Hygiene Law (“MHL”) § 81.02(a) provides that a court may appoint a guardian for an AIP if it determines that the appointment is necessary to provide for the personal needs of the AIP, or to manage the property and financial affairs of the AIP, or both; and either “that the person agrees to the appointment, or that the person is incapacitated”.

MHL § 81.16(c)(1) instructs that “If the person alleged to be incapacitated is found to have agreed to the appointment of a guardian and the court determines that the appointment of a guardian is necessary, the order of the court shall be designed to accomplish the least restrictive form of intervention by appointing a guardian with powers limited to those which the court has found necessary to assist the person in providing for personal needs and/or property management.” (emphasis added).

The language in the immediately following subsection, (c)(2) of MHL § 81.16, which applies to IPs, is identical, except that the language “is found to have agreed to the appointment of a guardian” is substituted with “is found to be incapacitated” and the word “person” is replaced with “incapacitated person”.

The statute does not create a separate standard for PINGs and IPs. The substantive language is the same.

In Matter of Cooper (Joseph G.), the Supreme Court of Bronx County opined:

The statute thus makes it clear that the consent of the AIP makes a finding of incapacity unnecessary. In effect, the consent takes the place of the finding of incapacity. Once there is consent, the Court is free to then appoint a Guardian, with the least restrictive powers as may be necessary to accomplish the purpose of the statute. The finding of consent does not encompass the granting of powers to the AIP, unless there is an explicit understanding that such is the case. There is thus no impediment to the Court accepting the AIP’s consent to the appointment of a Guardian, and then reserving to itself the right to delineate the powers to be given to the Guardian.

The PING who agrees, and can agree, to the appointment of a guardian, makes the determination of incapacity unnecessary. But the court still has discretion to determine the appropriate powers of the guardian based on its findings, which could include all powers under the sun, even without the PING’s consent to the award of powers it does not agree to, at least at the phase of initial appointment,  according to Joseph G.

In contrast, case law regarding an expansion of powers after appointment, or termination of the guardianship, differs from the analysis in Matter of Cooper (Joseph G.).

In Matter of Buffalino (James D.), the guardian of a PING sought an order to expand his powers. The Suffolk County Supreme Court, however, denied the application, and determined that, in order to expand the guardian’s powers, it was required to treat the guardian’s application as a new guardianship petition. “Granting an application to expand powers pursuant to MHL § 81.36 without the individual’s consent would effectively be a declaration of incapacity without a hearing to determine said incapacity”, wrote Justice Henry Patrick Leis III in Buffalino.

Justice Shawn T. Kelly in New York County came to a similar conclusion in Matter of Anonymous 1 (Anonymous 3), a case where the PING’s daughter sought to terminate the guardianship in its entirety.  The court denied the daughter’s motion to termination the guardianship, reasoning that the burden in such a proceeding would fall on the PING himself to establish by clear and convincing evidence that the guardianship should not be terminated, but here, the PING did not seek termination. “As the guardianship is a guardianship based on consent, not incapacity, forcing  [the PING] to bear the burden under [MHL] §81.36 is wholly inappropriate. This court cannot find any basis in the statute or in any caselaw which suggests that §81.36 should apply to consent guardianships”, wrote Justice Kelly.

It is also relevant to mention that, in practice, judges are generally very hesitant to grant a guardian powers that a PING does not consent to or  disregard a PING’s wishes and preferences.

Edit History:

  • Updated on March 21, 2025 to add analysis regarding expansion of powers and practical application of a PING designation by the courts.