Can a Non-New Yorker File for Guardianship in New York?
Understanding How Out-of-State Petitioners Can Seek Article 81 Guardianship in NY
Many families live across state lines, especially when adult children live outside New York while parents or relatives continue living here. This raises a key legal question:
“If I live outside New York, can I petition a New York court for guardianship of a family member who lives in NY?”
Yes — non-New Yorkers absolutely can petition for guardianship under MHL Article 81.
However, the process has nuances, and NY courts often prefer a local guardian unless the out-of-state petitioner demonstrates strong suitability.
This article explains how the process works, what standards apply, and what strategic issues families should consider.
Who Is Allowed to File a Guardianship Petition in NY?
Under MHL Article 81, a petition may be filed by:
A spouse
An adult child
A sibling
A person concerned with the welfare of the alleged incapacitated person (“AIP”)
A hospital or nursing home
An attorney
A government agency
Any person who demonstrates legitimate interest
There is no residency requirement for the petitioner.
✔ Translation: You can live in New Jersey, Florida, California — even abroad — and still file in New York.
When Must the Petition Be Filed in New York Rather Than Another State?
Venue in an Article 81 case is based on:
The AIP’s residence
Where the AIP is physically located
Where the AIP owns property
Where the relief is needed
Examples requiring NY filing:
The AIP lives in New York
The AIP is hospitalized or in a NY facility
The AIP owns NY real estate
NY banks require a NY guardianship order
Even if the petitioner lives far away, if the AIP’s life is centered in NY, the petition must be filed here.
Standards of Proof for Non-New Yorkers Seeking NY Guardianship
The petitioner — regardless of where they live — must prove:
(1) Incapacity by “clear and convincing evidence”
This involves showing:
The AIP cannot meet essential needs
The AIP cannot manage property or financial affairs
The AIP’s functional limitations are impacting health, safety, or property
There is no less restrictive alternative
(2) Appointment of a Guardian Is Necessary
Courts look for the least intrusive intervention.
Will the Court Appoint the Out-of-State Petitioner as Guardian? Not automatically.
NY courts generally prefer:
Guardians who can respond quickly
Guardians located close to the AIP
Guardians who can appear in court easily
Guardians available in emergencies
✔ When Courts Will Appoint a Non-New Yorker
The petitioner has a close familial relationship
The petitioner has a strong history of caring for the AIP
The petitioner already manages finances or healthcare
No appropriate NY resident is willing or trustworthy
✔ When Courts Will Prefer a New York Resident
The AIP needs frequent in-person supervision
The AIP resides in a facility that requires a local contact
The proposed guardian lives too far for emergencies
The case involves complex, ongoing property management
Sometimes courts appoint:
Co-guardians (one NY resident + one out-of-state family member)
A local professional + the out-of-state child for financial matters
Reverse structure depending on the needs of the case
How a Non-New Yorker Files for NY Guardianship: The Process
Step 1 — File an Article 81 Petition
This includes:
Medical evidence
Description of functional limitations
Explanation why the petitioner is the appropriate guardian
Statement of relief sought (property, personal needs, or both)
Step 2 — Court appoints a Court Evaluator
The evaluator investigates and reports on:
The AIP’s needs
Petitioner’s suitability
Whether a NY guardian is required
Alternatives to guardianship
Step 3 — Hearing
The court hears testimony and reviews the evaluator’s report.
Step 4 — Appointment of Guardian
If a non-New Yorker is appointed, the court may require:
Bond
Local backup guardian
Regular reporting
Proof of travel capacity or availability
Common Scenarios Where Non-New Yorkers Seek NY Guardianship
Adult child lives in Florida; parent lives in Brooklyn and has dementia
Son lives in California; mother in Manhattan refuses needed care
Brother lives in New Jersey; sister owns NY rental property
Family lives abroad; elderly parent maintains a NY winter home
Adult child in Italy manages finances but needs NY legal authority
Conclusion
Non-New Yorkers absolutely can petition New York for guardianship under MHL Article 81.
But the court will scrutinize suitability carefully and may favor local guardianship unless the petitioner’s role and relationship justify out-of-state appointment.
Are you a non-New Yorker who needs to file for guardianship of a family member living in New York?
Our law office helps out-of-state petitioners navigate Article 81 from start to finish. We can prepare your petition, coordinate with New York doctors and facilities, appear in court on your behalf, and position you—or a trusted local guardian—for appointment.
Whether you live in another state or another country, we make the NY guardianship process efficient, understandable, and tailored to your family’s needs.
Call us today for a free consultation and speak with an attorney who handles New York guardianships every day.
Phone: 347-692-0222
Email: 7622LAW@gmail.com