N.Y. Laws » CHAPTER Mental Hygiene / TITLE General Provisions / ARTICLE Proceedings For Appointment of a Guardian For Personal Needs or Property Management
New York Consolidated Laws

N.Y. Mental Hygiene Law § 81.12 (2026)

Burden and quantum of proof

✓ current as of May 2026
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§ 81.12 Burden and quantum of proof.
  (a) A determination that a person is incapacitated under the
provisions of this article must be based on clear and convincing
evidence. The burden of proof shall be on the petitioner.
  (b) The court may, for good cause shown, waive the rules of evidence.
The report of the court evaluator may be admitted in evidence if the
court evaluator testifies and is subject to cross examination; provided,
however, that if the court determines that information contained in the
report is, in the particular circumstance of the case, not sufficiently
reliable, the court shall require that the person who provided the
information testify and be subject to cross examination.
Notes of Decisions
Cited in 33 cases (2 in the last 5 years), 1994–2022 · leading case: In re Marie H., 25 A.D.3d 704 (N.Y. App. Div. 2006).
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In re Marie H., 25 A.D.3d 704 (N.Y. App. Div. 2006). · cites it 4× “was incapacitated (see Mental Hygiene Law § 81.12 [a]). The rules of evidence apply to proceedings pursuant to Mental Hygiene Law article 81, and Mental Hygiene Law § 81.”
Matter of Carolyn S. (Gaylor), 192 A.D.3d 1114 (N.Y. App. Div. 2021). · cites it 2× “Significantly, any guardian appointed shall be granted "only those powers which are necessary to provide for personal needs and/or property management of the incapacitated person in such a manner as appropriate to the individual and which shall constitute the least restrictive…”
In re United Health Servs. Hospitals, Inc., 6 Misc. 3d 447 (N.Y. Sup. Ct. 2004). · cites it 2× “The AIP’s attorney objected on two grounds: (1) the Fifth Amendment right not to testify when a liberty interest is at stake, and (2) that permitting petitioner to call the AIP would shift the burden of proof that is imposed upon petitioner by Mental Hygiene Law §81.12 (a). The…”
In re Maher, 207 A.D.2d 133 (N.Y. App. Div. 1994). “Finally, the hearing court erred in admitting into evidence the report of the court evaluator because, although present at the hearing, the court evaluator did not take the stand and submit to cross-examination (see, Mental Hygiene Law § 81.12 [b]). We conclude that this error…”
In re the Appointment of a Guardian for Chaim A.K., 26 Misc. 3d 837 (N.Y. Sur. Ct. 2009). “• Article 81 requires proof by clear and convincing evidence (Mental Hygiene Law § 81.12 [a]), while article 17-A is silent as to the burden.”
In re Chase, 264 A.D.2d 330 (N.Y. App. Div. 1999). “*333 However, the evidence does not show that he was legally incompetent at the time he executed the power of attorney (see, Mental Hygiene Law §§ 81.12, 81.29; see also, Gala v Magari-nos, 245 AD2d 336 ).”
In re Allers, 37 Misc. 3d 418 (N.Y. Sup. Ct. 2012). · cites it 3× “(Mental Hygiene Law § 81.12 [a].) The court is only permitted to waive the rules of evidence “for a good cause shown.”
Matter of Carole L., 136 A.D.3d 917 (N.Y. App. Div. 2016). “by the nature and extent of that person’s property and financial affairs”; any mental disability and the prognosis of the disability; “any medications with which the person is being treated and their effect on the person’s behavior, cognition and judgment”; and “other relevant…”
In re Janczak, 167 Misc. 2d 766 (N.Y. Sup. Ct. 1995). · cites it 3× “2 This determination is based upon clear and convincing evidence, which is the quantum of proof required for a finding of incapacity, as provided in Mental Hygiene Law § 81.02 (b) and repeated in Mental Hygiene Law § 81.”
In re Kurt T., 64 A.D.3d 819 (N.Y. App. Div. 2009). “Here, assuming without deciding that the first prong of the test was satisfied, we agree with Supreme Court that petitioner failed to meet her burden of establishing that respondent is incapacitated (s ee Mental Hygiene Law § 81.12 [a]). While it is undisputed that respondent…”
In re Ruth TT., 267 A.D.2d 553 (N.Y. App. Div. 1999). · cites it 2× “” At the hearing, the burden of proving *555 incapacity by clear and convincing evidence is on the petitioner (see, Mental Hygiene Law § 81.12 [a]). In accordance with Mental Hygiene Law § 81.”
In re Rita R., 26 A.D.3d 502 (N.Y. App. Div. 2006). “was incapacitated (see Mental Hygiene Law § 81.12 [a]; § 81.29 [d]).”
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