In a New York Mental Hygiene Law Article 81 guardianship proceeding, courts strongly prefer appointing family members as guardian of the incapacitated person. However, there are exceptions.

When  family members fight to be appointed guardian, are acrimonious, or can’t get along, courts often hesitate to appoint any family member as guardian, even if otherwise qualified.

This article explores how judges decide who to appoint as guardian when the incapacitated person’s family can’t get along. 

When family fighting justifies the appointment of a neutral third-party guardian

In Matter of Tanya M., the Supreme Court of Nassau County noted that when selecting a guardian the primary concern is what is in the best interests of the incapacitated person. An “incapacitated person” is the person who is the subject of the guardianship. This determination, the Court wrote in its decision, involved the judgment of the facts and discretion of the court.

Citing appellate authority, the Court held that a stranger should not be appointed as guardian unless it is impossible to find someone who is qualified within the family circle of the incapacitated person or a nominee of the incapacitated person. However, the Court noted that when there is dissension between family members a court is justified in appointment of a neutral third-party guardian. 

In re Wynn, one of New York State’s intermediate appellate courts, the Appellate Division, Fourth Department, wrote: “Although preference is given to relatives, a stranger may be appointed if the court determines that a relative is unsuitable”.

In that case, the Appellate Court found an “extreme contention” between the incapacitated person’s (“IP”) wife and his siblings. The petitioner, the person who brought the guardianship proceeding, was divorced from the IP for almost 30 years, but later remarried him. The petitioner accused the IP’s brother of stealing money from the IP. The IP’s siblings accused the petitioner of the same thing. 

Based presumably on the record of the lower court, the Appellate Court found that prior to the guardianship proceeding, the IP resided at times with the petitioner and at other times with his siblings. The petitioner did not welcome visitation from the siblings while the IP was in her care and strongly opposed the appointment of the IP’s brother as guardian. For their part, the siblings also didn’t welcome visitation from the petitioner while the IP resided with them, and strongly opposed the appointment of petitioner as guardian. 

The Appellate Division, Fourth Department, upheld (aka “affirmed”) the lower court’s ruling. “Based on this record, the court properly exercised its discretion in determining that the best interests of the IP would be served by appointing a nonrelative to serve as guardian rather than petitioner or the IP’s brother,” wrote the Appellate Court.

Even an otherwise qualified loved one may be disqualified from serving due to  ‘conflict and acrimony’

Those hoping to be appointed as guardian of an incapacitated loved one, and who may even be qualified to do so, often find themselves disappointed with the court’s final decision because of family infighting, disputes, rivalries, and contentions.

For example, in Matter of Camoia (Giaimo) , the petitioners were the daughter of the alleged incapacitated person (“AIP”) and the daughter’s husband. The cross-petitioner was the daughter’s twin-brother.

The Kings County Supreme Court determined that the petitioners “ostensibly” met the qualifications to serve as guardian, but that the on-going conflict between petitioners and cross-petitioner regarding the care and treatment of the AIP weighed against appointing the petitioners as guardians because the “conflict and acrimony that has burdened this familial relationship in recent years…could potentially continue should the Court appoint the petitioners.” 

In the end, the Court appointed an independent guardian.

Despite conflict, it is not impossible for family to be appointed guardian

Although the appointment of an independent guardian for an alleged incapacitated person is common when there is family infighting, it is by no means an inevitable result.

Outcomes vary based on the facts,  the particular judge’s temperament, and other factors. 

One common outcome (although certainly not exclusive) in such cases is the appointment of a family member along with an independent co-guardian. 

In re Margaret S., the Richmond County Supreme Court found that even when multiple members of a family desire the appointment as sole guardian, and are qualified to do so, it may be in the best interest of the AIP to appoint one of the family members and have independent co-guardians additionally appointed to avoid conflicts and advise the Court. (See 2006 N.Y. Misc. LEXIS 2833; NYLJ July 14, 2006, p. 23, col. 1; [Sup Ct, Richmond County June 21, 2006, No. 8134/04](Giacobbe, J.)).

In that case, a sister petitioned, and a brother cross-petitioned, to be appointed as their mother’s guardian. Despite contention between the siblings, the Court appointed the AIP’s son as co-guardian of the property along with an independent guardian, and the AIP’s daughter as guardian of the person along with an independent co-guardian.

The Court in NYC’s forgotten borough found that “the disinterested evidence and information furnished to the Court” by both the court evaluator and the temporary co-guardian of the AIP’s person clearly demonstrated that the son, for some time, adequately provided for his mother’s care and personal needs and that it was the AIP’s expressed preference and wish that he continue to care for her personal needs by assisting her in the activities of daily living. 

In addition, the Court found that the daughter had already successfully managed her mother’s property and that she had demonstrated “the love, competent ability and concern for her mother’s welfare that best qualify her for this role.” 

The Court, however,  was “mindful of the history of confrontation and disagreement between the parties and the potential for further conflict between the respective guardians/siblings.” Therefore, the Court deemed it “to be in the best interest of the AIP that the independent temporary co-guardians appointed by the Court during the pendency of this matter continue to exert a moderating influence”. Accordingly, the temporary co-guardian of the person was appointed permanent co-guardian of the AIP’s person along with the AIP’s daughter, and  the temporary co-guardian of the property appointed permanent co-guardian of the AIP’s property along with the son.

The outcome in re Margaret S. is not uncommon. Again, however, the outcome is contingent upon the facts, the judge, the ability of counsel to effectively advocate, and other factors.

In Matter of Tanya M., which is also discussed above, resulted in the appointment of one daughter as guardian of the personal needs and property management needs and a neutral third party appointed as co-personal needs guardian. The Court reasoned that a neutral third-party co-guardian was required “to assist in all disputes.”

In that case, the Court found that the AIP was an  88-year-old woman suffering from dementia and memory deficiency impairment and that the appointment of a guardian was necessary.

In Matter of Tanya M., the Court wrote:

Here, there are two daughters/sisters who both want to be…guardian, and frankly it is difficult to decide which person should be the guardian since they both merit the appointment. However, they cannot work together as there is dissension between them, which was clear during the hearings and substantiated by the court evaluator in her testimony and report; . . . Despite the children wanting the best for their mother, and [the AIP’s] wishes that they have equal say, unfortunately it is not in the best interest of [the AIP] to have both individuals appointed as co-guardian as it may lead to future contention and disagreements resulting in harm…

An Order and Judgment, the legal document that appoints a guardian and sets forth the guardian’s powers, are custom-tailored to fit the needs of the IP. Courts have broad discretion in who they can appoint as guardian or co-guardian.


Family is the preferred choice to serve as guardian in a New York State MHL art. 81 guardianship proceeding. But when there is dispute between family members, courts will often look to an independent guardian, or third-party neutral, to serve.