Sholes & Miller is a Qualified Member in Best’s Recommended Insurance Attorneys

Submitted on Tue, 08/03/2021

Sholes & Miller PLLC, Attorneys and Counselors at Law have qualified for a profile in Best’s Insurance Professional Resources. Sholes & Miller’s profile as a Qualified Member in Best’s Recommended Insurance Attorneys shows that they are client-recommended and verified by AM Best. This list showcases professionals with a history of client satisfaction and a proven track record in the insurance and claims industry. 

AM Best is a global credit rating agency headquartered in New Jersey, specializing in the insurance industry. The company is the world’s first credit rating agency, in business and growing for over 120 years. AM Best has grown to be the largest credit rating agency in the world specializing in the insurance industry.

AM Best information services integrate credit ratings, commentary, research and analysis with insurance news, financial data and thought leadership to help consumers and professionals make more informed personal and business decisions. AM Best publishes a series of printed and online resources of insurance professionals and publications. The oldest and best known is Best’s Recommended Insurance Attorneys. Sholes & Miller is proud to be included on this list as a Qualified Member.

For the latest profile information, go to  Click here to see the Sholes & Miller profile.

Position Available

Submitted on Tue, 05/18/2021

Sholes & Miller, PLLC, a firm representing hospitals, nursing homes, physicians and other health professionals in NYC and the Hudson Valley has a position for a New York admitted attorney with litigation experience and knowledge of medical terminology and anatomy/physiology. Experience as a health professional (e.g. RN, PA, medical social worker) and/or first seat jury trial counsel are preferred. The successful applicant will have excellent writing, legal analysis, research and time management skills. Send c.v. and salary requirements to Lynn Webb, Excellent working conditions, lifestyle, compensation and benefits.

Robert Miller, Nurse Attorney, is a Member of TAANA

Submitted on Tue, 11/17/2020

Robert Irving Miller, R.N., M.S., J.D., a founding partner of Sholes & Miller, is a nurse attorney, licensed to practice both nursing and law. Mr. Miller practices law in New York and Connecticut, and is a registered nurse in New York State. He is a member of The American Association of Nurse Attorneys (TAANA), a national association that provides resources, education and leadership to its members and the healthcare and legal communities. Mr. Miller has been a member of TAANA for several years.

Mr. Miller recognizes the importance of networking and mentorship with others who have chosen the combined careers of law and healthcare. His participation in TAANA is a vital opportunity to teach, share and learn. Mr. Miller is also a member of the American Health Lawyers Association.

In addition to his membership as a fellow with TAANA, Robert Miller participates in the TAANA Speakers Bureau, a group that presents numerous topics of interest to nurses in all specialties. Mr. Miller’s presentation subjects include:

• Administrative/Regulatory Law
• Guardian/Conservatorship
• Health Law
• Malpractice
• Nursing Homes/Skilled Facility
• Nursing Practice Issues
• Privacy/Compliance/HIPAA
• Risk Management/Patient Safety

Mr. Miller is also available to speak to other groups about any of these topics. He is happy to share his knowledge by offering presentations, which may be viewed virtually. Please contact Sholes & Miller for more information.

Sholes & Miller Strengthens the Community by Supporting Dutchess Outreach’s Local Food Access Programs

Submitted on Fri, 09/25/2020

10.5% of U.S. households were food insecure2 in 2019. That number has been estimated to have doubled during the current COVID-19 health crisis3. In Dutchess County alone, 26,130 individuals suffer from food insecurity. That’s 8.8% of the population1. In the language of the federal government, food insecurity is defined as when a person or a family has “limited or uncertain availability of nutritionally adequate and safe foods or limited or uncertain ability to acquire food in socially acceptable ways.” The need for local food assistance has been exacerbated by widening income inequality.

To help combat food insecurity right here in our community, Sholes & Miller has made a substantial monetary contribution to Dutchess Outreach, helping to fund their food access programs. This donation was made in honor of the firm’s 20th anniversary, and in response to the pandemic’s effect on our local economy. Sholes & Miller is committed to celebrating their 20th year milestone in safe virtual ways due to the current public health crisis.

Dutchess Outreach was created to help lift people out of poverty by providing food access and emergency relief programs and services. Dutchess Outreach’s mission states that they are an advocate and provider of hunger and relief services in order to ensure that everyone, regardless of income, has access to fresh, healthy food and the support they need. They work tirelessly to widen food access, increase advocacy, and provide emergency relief to low-income residents of Dutchess County, assisting individuals and families who face challenges associated with filling their most basic needs.

In the face of the current global pandemic, the need for local services has more than doubled. Dutchess Outreach reports that they are serving clients who haven’t had the need to visit their food pantry in over 20 years.

Dutchess Outreach funds several different food access resources. The Lunch Box Community Meal Program and the Beverly Closs Food Pantry are located at the Family Partnership Center in Poughkeepsie. Other resources include the Dutchess Outreach Mobile Fresh Market, Farm Stand and Urban Farm.

The Lunch Box is a community meal program that serves free hot meals. Now operating with adjusted hours and service, they offer free to-go lunches six days a week, and free to-go dinners five days a week.

The Beverly Closs Food Pantry provides a three-day emergency supply of food for entire households. In addition to food, they provide personal hygiene items. The pantry is open mornings, four days a week.

The Mobile Fresh Market brings fresh produce directly to the city of Poughkeepsie in a huge green truck. This community health solution gives urban residents an opportunity to purchase fresh food three days a week, in season.

The Dutchess Outreach Farm Stand program gives out free farm fresh produce in the city of Poughkeepsie one Friday each month, year-round. Absolutely anyone can come and get free fruits and vegetables.

The Urban Farm program gives farming access to people who live or work in the City of Poughkeepsie and want to grow their own food. Plots are located within the Fall Kill Community Garden.

Dutchess Outreach has changed the way they serve in response to the COVID-19 pandemic. To meet an increased need and to abide by official guidelines for social distancing, the way both the food pantry and the Lunch Box meal program are operated has substantially changed.

Dutchess Outreach has added grocery delivery services, moved pantry services from the second floor of the Family Partnership Center to the ground floor, and is now serving hot lunches and dinner to go instead of inviting clients indoors. For years the food pantry was located on the second floor of the Family Partnership, until the recent pandemic called for a change. In response, City of Poughkeepsie workers, led by Mayor Rob Rolison, helped Outreach staffers move all of the pantry items to the basement of the building so that clients can be given bags of food without entering the building.

During the first few of months of the COVID-19 crisis, the food pantry provided more than 19,500 meals, averaging 600 meals a day. The Lunch Box served over 13,000 prepared meals to go, averaging 300 meals daily. At the outset and during the peak of the spread, Dutchess Outreach had to put a hold on accepting donations of non-perishable food items because of a limited capacity to sanitize them. As a result, Dutchess Outreach purchased approximately 58,000 lbs. of food to meet the need, stretching their budget considerably.

Sholes & Miller remains committed to celebrating their 20th anniversary safely. They have moved forward with positive creative solutions to mark this milestone, including helping to fight local food insecurity by supporting the food access resources of Dutchess Outreach. To find out more about services provided by Dutchess Outreach, or how to donate, visit

Sholes & Miller Celebrates 20th Anniversary of the Firm

Submitted on Mon, 08/17/2020

Sholes & Miller, PLLC is proud to announce that they are celebrating their 20th anniversary. The firm was founded on August 1, 2000 by partners Sarah E. Sholes, Esq. and Robert Irving Miller, Esq. The firm of Sholes & Miller has been providing comprehensive legal representation of families, individuals, companies, medical professionals and facilities, and other lawyers for the past twenty years in the Hudson Valley, the New York City metro area and the capital region.

Not long after being established, Sholes & Miller emerged as a pre-eminent leader in providing comprehensive representation of clients in the healthcare industry. The firm’s attorneys have represented numerous clients – from malpractice and disciplinary proceeding defense to helping hospitals and nursing homes keep their legal matters running smoothly. The dynamic combination of founding partners Sarah Sholes and Robert Miller, who have both spent their entire careers working with healthcare professionals, has made the firm a leader in providing comprehensive representation of clients in the healthcare industry.

Sarah E. Sholes has more than forty years of experience in trying complex cases to verdict in the defense of general liability and medical malpractice claims. She has won defense verdicts in the vast majority of those cases, including numerous trials in which plaintiffs’ counsel asked the jury to award multimillion-dollar damages. Ms. Sholes’ experience also encompasses all aspects of personal injury litigation, including product liability, labor law, motor vehicle, premises liability, property damage, rape, false arrest, slander cases, insurance coverage, and Title VII and Title IX sexual harassment investigations.

Before practicing law, Robert Irving Miller had a successful career in healthcare holding positions as an ICU/ER nurse, nurse administrator, hospital risk manager and administrator, and licensed nursing home administrator. Mr. Miller’s experience in both the fields of law and healthcare has made him an ideal advocate for hospitals, nursing homes, physicians and other health professionals. He stays current in the healthcare field, keeping his nursing license up-to-date. Mr. Miller is licensed to practice law in both New York and Connecticut as well as in federal courts in the Northern and Southern Districts of New York. Together, the partners’ vast experience and knowledge has been an asset in assisting clients in navigating the legal intricacies of the medical industry.

The history of Sholes & Miller is a story of growth and change. Throughout the years, the firm has grown in both size and scope. The firm currently consists of a team of seven experienced attorneys. Over the years areas of practice have expanded to include legal counsel in litigation; personal injury; labor, employment, construction and prevailing wage law; Title IX/sexual harassment; and wills, trusts and estates. Many of the firm’s individual clients – whether for estate planning, business management or other general needs – are physicians and other health professionals who liked the work of Sholes and Miller’s attorneys in an initial litigation or professional disciplinary matter and have asked to remain as clients for other purposes. In 2020, this general practice legal firm has expanded and is going strong!

Sholes & Miller will be marking their 20th year milestone with safe, virtual celebratory events since ribbon cuttings and large gatherings must be postponed for now due to the current public health crisis. As the firm remains committed to celebrating safely, plans have changed and flexibility has been required. Creative solutions include funding local food assistance programs, hosting a virtual fireworks show on social media, and celebrating using socially distanced technology.

Sholes & Miller has made a substantial monetary monetary contribution to Dutchess Outreach in honor of the firm’s 20th anniversary and in response to the pandemic’s effect on our local economy and the growing need for local food assistance. Dutchess Outreach funds two different food access resources located at the Family Partnership Center in Poughkeepsie, the Lunch Box Community Meal Program and the Beverly Closs Food Pantry. Dutchess Outreach also offers several other services, including the Mobile Fresh Market and The Dutchess Outreach Urban Farm. Dutchess Outreach’s mission states that they are an advocate and provider of hunger and relief services in order to ensure that everyone, regardless of income, has access to fresh, healthy food, and the support they need. To find out more about how to receive services, get involved, or make a donation, visit

The team at Sholes and Miller has great memories of events they have shared throughout the years. Some of the most rewarding times have been in volunteer projects for Rebuilding Together Dutchess County, whose mission is to repair homes, revitalize communities, and rebuild lives. Team members from Sholes & Miller participated together in the rehabilitation of homes belonging to low-income, senior and disabled homeowners.  While the carpentry skills of attorneys and staff run the gamut from professional to all thumbs, there can be no question as to the dedication to community by all participants involved in these important volunteer projects.

Volunteerism is an important part of the firm’s contributions to the community. Both partners, Robert Irving Miller and Sarah Sholes, serve on numerous community boards. Ms. Sholes serves as a lifetime emeritus trustee at the Anderson Center for Autism, in addition to her other volunteer positions.

The past few months have been extremely challenging for everyone due to the worldwide pandemic. Sholes & Miller is happy to offer video conferences instead of in-person meetings to ensure the health and safety of clients and staff. Socially distanced, outdoor meetings are also a simple solution to today’s problems. Sholes and Miller looks to the future as the current public health crisis is moving the use of technology to the forefront, with consultations, depositions and some court proceedings being held virtually. Sholes & Miller remains fully committed to safely and efficiently serving their valued clients for many more years to come.


Ellen A. Fischer Named as Appellate Counsel at Sholes & Miller

Submitted on Fri, 07/10/2020

Ellen A. Fischer, an attorney with over 25 years of experience, has been named as Appellate Counsel at Sholes & Miller, PLLC.  Ms. Fischer has practiced medical malpractice defense for over 22 years, concentrating in the areas of legal research and writing. She has perfected and/or responded to over forty appeals and has extensive experience in preparing and defending complex motions. Ms. Fischer is available for the preparation of briefs and other litigation tasks at Sholes and Miller. Her services are available to attorneys who require assistance with the following:

  • Post-trial motions and other substantive motion practice in New York state courts
  • Review of decisions for appealable issues
  • Review of trial record for appealable issues
  • Preparation of record and appellate briefs
  • Legal research and writing

Some examples of Ms. Fischer’s successes in the appellate divisions are as follows:

Houston v. Koszer, 178 AD3d 781 (2nd Dept. 2019)
Successfully defended appeal of jury verdict in complex medical malpractice action.

Slintak v. Price Chopper Supermarkets (2nd Dept. 2011)
Plaintiff in slip-and-fall appealed from order granting summary judgment; order affirmed.

Balcom v. Reither, 77 AD3d 863 (2nd Dept. 2010)
Successfully argued for dismissal of appeal, with costs.

LaFurge v. Cohen, 61 AD3d 426 (1st Dept. 2009)
Successfully argued that preclusion of plaintiff’s expert oncologist’s new theory of liability was proper, and that plaintiff’s expert medical physicist was properly precluded from testifying on the medical issue of the Biological Equivalent Dose of high dose rate radiation brachytherapy in a patient with a rare form of cancer.

Rodriguez v. Zeichner, 50 AD3d 999 (2nd Dept. 2008)
Motion for dismissal of appeal of one order granted, and remaining order affirmed dismissing medical malpractice complaint.

Sangiovanni v. Koloski, 31 AD3d 422 (2nd Dept. 2006)
Successfully argued that the facts adduced at trial in a medical malpractice action were insufficient to warrant a jury charge on the doctrine of res ipsa loquitur, and that statements made by the defendant physician did not constitute judicial admissions.

Cedrone v. Bon Secours Community Hospital (2nd Dept. 2006)
Successfully argued that the order denying a further examination before trial of a witness and granting a motion to preclude questioning of a different witness regarding photographs, were not appealable as of right and that permission to appeal should be denied.

Broadie v. St. Francis Hospital, 25 AD3d 745 (2nd Dept. 2006)
Successfully reversed jury verdict for plaintiff in medical malpractice action.

Miller v. Weisel, 15 AD3d 458 (2nd Dept. 2005)
Obtained reduction of verdict in Erb’s Palsy case from $1.2 million for pain and suffering to $700,000.

Martin v. Hudson Valley Associates, (2nd Dept. 2004)
Appealed from order denying summary judgment on informed consent issue, appeal granted, and cause of action dismissed.

Craig v. Kim, 289 AD2d 364 (2nd Dept. 2001)
Successfully moved for summary judgment dismissing the complaint in a medical malpractice action, affirmed on appeal.

McDade v. Wright, 268 AD2d 570 (2nd Dept. 2000)
Successfully argued that the dismissal of a complaint on jury verdict was proper, and that the CT films presented at trial were properly authenticated.

When not writing briefs, Ms. Fischer is a busy mom of two teenage boys and three rescue cats. She likes to help when she can at the local food pantry. She and her husband Bryan spend time together on the weekends antiquing and searching for old-fashioned diners to “review.” Ms. Fischer also enjoys gardening and fishing at the pond at her family’s farm in upstate New York during the summers, and journaling, knitting and scrapbooking during the winters.

Ellen A. Fischer can be reached by calling Sholes & Miller at 845-447-8000 or by sending an email to for a courteous and prompt response.

Robert R. Haskins, Esq. Joins Sholes & Miller

Submitted on Wed, 05/20/2020

Robert R. Haskins, an attorney with over 35 years of experience, has joined the team of dedicated professionals at Sholes & Miller PLLC. Mr. Haskins, of counsel to the firm, is involved in all aspects of medical defense litigation including case assessment, fact and medical investigation reviews, depositions, motions and appeals. Mr. Haskins’ law practice centers on the defense of physicians, nurses, hospitals and nursing homes in medical malpractice litigation. In addition, he represents plaintiffs in personal injury litigation. Mr. Haskins is also an experienced, certified mediator.

Mr. Haskins is admitted to practice in all New York State courts and the United States District Courts in both the Southern and Northern Districts of New York. He received his BA from the State University of New York at New Paltz before earning his Juris Doctor degree from Syracuse University School of Law.

In addition to his distinguished law career, Mr. Haskins makes a positive impact on our community by contributing his expertise to many local not-for-profits. He has served on numerous boards, including the Mediation Center of Dutchess County, Mental Health America, Kaatsbaan Center for Dance and the Springside Restoration.

Mr. Haskins has lectured at Oxford University on reproductive rights and has taught Reproductive Law and Policy at the State University of New York at New Paltz. He has had the honor of being the keynote speaker at the New York State convention of the National Organization of Women.

Labor and Employment Law for Businesses offered by Randy L. Braun

Submitted on Thu, 02/20/2020

Randy L. Braun, an attorney with over 30 years of experience, is labor and employment counsel at Sholes & Miller. He has extensive experience in the areas of labor and employment law, workplace discrimination, construction law, collective bargaining, employee disciplinary matters, arbitration, employment policies and procedures, human resources management, corporate compliance, as well as federal and New York State prevailing wages. Employers in the Hudson Valley surely will find him to be a valuable asset in assisting them with respect to those areas and related matters.

In addition to his impressive legal background, Randy is a talented musician who plays a variety of instruments, and who has worked as a professional drummer. After skipping the 7th and 8th grades, he attended the High School of Performing Arts (the “Fame” school in New York City), majoring in music as a percussionist, and graduated just prior to his 16th birthday. Randy then went on to graduate from Pace University with a Bachelor of Arts degree in Literature and Communications, Magna Cum Laude, and made the Dean’s List in all his semesters there. Also, he was elected to the Pace University chapter of the Alpha-Chi National Collegiate Honor Society.

Randy began his legal studies at the Fordham University School of Law at the age of 20. After graduating from Fordham with a Juris Doctor degree, he began working for a law firm that practiced labor, employment, construction, and wage and hour law. He has continued to practice in those areas for almost 34 years. Sholes and Miller, Attorneys and Counselors at Law, is proud to offer Randy’s advice and counsel to businesses of all sizes.

Legal services include:

  • Traditional Labor Law – NLRA
  • Employment Law Compliance
  • Human Resources Counselling
  • Collective Bargaining
  • Employee Disciplinary Matters
  • Employment Handbooks
  • Civil Service Law
  • Employment Discrimination Defense
  • Workplace Investigations
  • Hiring and Interviewing Procedures
  • Employment and Severance Agreements
  • Federal and NYS Department of Labor Matters
  • Construction Law
  • Federal Davis-Bacon Matters
  • NYS Prevailing Wages
  • Wage & Hour Law
  • Paid and Unpaid Family/Medical Leave
  • Pre-employment Testing


Sholes & Miller, PLLC is comprised of attorneys who have more than 140 years of combined experience. They will be celebrating 20 years in business in the Hudson Valley during 2020. The firm serves the New York metro area, the Hudson Valley and the Capital District. With a strong reputation for representing the vast legal needs of medical professionals and facilities, practice areas also include comprehensive legal representation of corporations, individuals, families, and lawyers.

“Enough is Enough”: What You Need to Know About the Law

Submitted on Mon, 08/03/2015

The passage of the New York State Education Law that’s being called “Enough is Enough” means that all private colleges and universities in the state must amend their Title IX policies (“codes of conduct”) to incorporate the requirements of the new law, or risk losing state aid and assistance. A certificate of compliance with the provisions of the statute must be filed annually with the Education Department commencing on or before July 1, 2016. In addition, each institution must file its amended code of conduct with the state by July 1, 2016, and thereafter every ten years.

The stated purpose of the new law is to reduce the incidence of sexual assault, dating violence, domestic violence and stalking on campuses statewide. Toward this goal, institutions of higher learning must, among other things, adopt policies stating that the affirmative consent of both parties is required for sexual activity and that there will be amnesty for students who report sexual assault/violence that occurred while they were violating policies on drug and alcohol use. Institutions must also annually distribute to all students a “Students’ Bill of Rights” that informs victims of sexual violence of their legal rights, including their right to disclose the sexual assault/violence to both the school and outside law enforcement agencies such as the state police.

The law requires schools to provide numerous other disclosures to students who report (“reporting individuals”) sexual assault/violence. Institutions are also now required to make at least annual “campus climate assessments” to gauge the general awareness of the new law’s requirements. This will be done by anonymous questionnaires and the results published on the school website. Each school must also adopt an ongoing education campaign, consistent with the Clery Act and the Violence Against Women Act, to train all first year and transfer students on a number of topics concerning sexual assault, domestic violence, dating violence, and stalking.

The law is complex and detailed. The importance of timely and full compliance with it cannot be overstated, as state financial aid is at stake. Sholes & Miller has many years of experience in investigating all types of Title IX complaints on campus, involving students, faculty and employees. We can assist colleges and universities in rewriting their policies so as to be in compliance with the law, in providing Title IX training, and in investigating Title IX complaints.

– Sarah E. Sholes

Going To Court: Can I Do It Myself?

Submitted on Wed, 07/22/2015

We have seen some rather terrible things happen to people when they have gone to court without at least consulting an attorney. Therefore, we always recommend that people at least speak with an attorney before deciding to proceed without one.

New York State does, however, have “do-it-yourself forms,” and computer programs that are designed to help people fill out certain legal papers without the assistance of an attorney. Through a program called Access to Justice, the New York State court system provides programs and advice for people who wish to fill out the following court forms:

  1. Small Estate Affidavit;
  2. 17-A Guardianship Petition;
  3. Name Change Petition;
  4. Support Modification Petition;
  5. Paternity Petition;
  6. Support Enforcement/Violation Petition.

The information and forms can be found at:

This and our other blogs are not intended to be legal advice for any particular situation.

Understanding Guardianships in New York State: Article 81 of the Mental Hygiene Law

Submitted on Tue, 05/12/2015

The New York Times recently featured an article entitled, “As Cognition Slips, Financial Skills Are Often the First to Go.” According to the research cited therein, approximately 50% of adults in their 80s have dementia or some other cognitive impairment. Further, studies have revealed that “the ability to perform simple math problems, as well as handling financial matters, are typically one of the first set of skills to decline in diseases of the mind, like Alzheimer’s.” Unfortunately, this may leave the elderly vulnerable to poor decision-making or to exploitation by others.

Fortunately, there are protective mechanisms by which one can safeguard one’s finances or property, in the face of cognitive decline or impairment. Those include a durable power of attorney, which is a legally executed and witnessed document that allows an individual to appoint a competent adult to act on one’s behalf. A power of attorney can be granted for a specific, limited purpose or period of time. It can also be granted for much broader purposes such as handling all financial affairs on behalf of another person. It would remain in effect even when the individual (or “Principal”) is no longer able to make decisions due to health or mental capacity.

If an individual is receiving Social Security benefits, it is important to note that the U.S. Treasury Department does not recognize a power of attorney for the purpose of negotiating federal payments, including Social Security or SSI payments. In that instance, an individual or entity that wants to help manage another’s federal benefits must be designated as a Representative Payee. The designation requires approval from the Social Security Administration. Once approved, the Representative Payee is authorized to receive the federal benefits on behalf of the incapable or incompetent beneficiary.

An issue arises when an individual is no longer capable of managing his/her affairs, but does not have any protective mechanisms in place, including a power of attorney or a designated Representative Payee. In certain cases, one might have to resort to pursuing guardianship of an individual if there are no available alternatives.

The second form of guardianship is found within Article 81 of New York’s Mental Hygiene Law. An Article 81 guardianship is often used in the case of an individual with Alzheimer’s disease, dementia or some other extent of cognitive impairment. It is generally appropriate for an individual who at one time was competent, but now suffers from cognitive or functional limitations that are likely to cause the person harm. It may also be pursued for an intellectually disabled or developmentally disabled individual who may not fit into the requirements for a 17-A guardianship.

Unlike the Article 17-A guardianship, which gives broad powers to guardians that are similar to the authority a parent has over a child, Article 81 provides framework where the Court specifies exactly what decisions are made by the incapacitated person and what decisions are made by the guardian. This provides a tailored plan that meets the specific needs of the incapacitated person. A “Guardian of the Person” appointed under Article 81 can take care of assuring the person’s safety, health care, living arrangements, meals and/or other day-to-day activities and needs. A “Guardian of the Property” may also be authorized to manage the incapacitated person’s finances, property and other assets. The personal needs guardian and property guardian need not be the same individual. In some instances, it might be appropriate to have individuals act as co-guardians, with the joint goal of preserving the incapacitated person’s well-being and property affairs.

Article 81 allows for a broad range of individuals to petition for guardianship, including the alleged incapacitated person (AIP) him/herself, an adult relative, the CEO of a facility in which the AIP is a resident or patient, or any person otherwise concerned with the welfare of the AIP.

In order to obtain an Article 81 guardianship, the petitioner must file an order to show cause and verified petition with the Supreme Court for the county where the individual resides or is physically present. Typically, the Court will appoint an attorney for the alleged incapacitated person and/or a Court Evaluator, who is tasked with investigating the allegations in the petition.

The Court will schedule a hearing, and the AIP has a right to be present at the hearing. If, for any reason, the AIP is unable to attend the hearing at the courthouse, then the hearing will be conducted wherever the AIP is located (e.g. a nursing home, hospital, etc.). In some circumstances, the AIP’s presence at the hearing may be waived if it is found that the AIP is completely unable to participate in a hearing or if no meaningful participation will result from the AIP’s presence.

At the hearing, it must be proved that the appointment of a guardian is necessary and that the AIP either agrees to the appointment or is deemed incapacitated. An AIP is found to be incapacitated if he/she is unable to provide for himself/herself, and cannot understand the consequences of that inability. The parties will have the right to present evidence, and call and cross-examine witnesses, in order to establish whether a guardianship is appropriate. The burden is on the petitioner to prove that a guardian is necessary and that the AIP is either incapacitated or consents to the appointment.

If the petitioner is successful in establishing the need for a guardian, the Court will make certain findings, including the specific powers that an appointed guardian will be authorized with. The powers must be the least restrictive form of intervention aimed at addressing the specific needs of the AIP. The Court’s findings will be memorialized in an Order & Judgment, and thereafter, the appointed guardian must obtain a “Commission,” which is the official document that gives guardians the legal power to act on behalf of another adult. The guardian also completes an Oath and Designation, which attests that the guardian will carry out his/her responsibilities faithfully, honestly and carefully, and allows the county clerk to be served with any legal papers if the guardian cannot be found. In some cases, the Court may require the guardian to obtain a fiduciary bond, which is an added layer of protection for the AIP in case money is lost due to a guardian’s actions or mistakes. The Court may also require an appointed guardian to take a training course.

Any suitable adult can become a guardian. However, family members are typically given preference. A not-for-profit corporation, social services official, or a public agency can also be granted guardianship.

A guardian must file regular reports with the Court and visit the incapacitated person at least four times per year.

The guardianship lasts for the life of the incapacitated person. During the guardianship, the Court may be further petitioned to terminate the guardianship, modify the order and judgment, expand or remove powers given to the guardian, or remove the guardian from his/her appointment.

An Article 81 proceeding is generally more formal than an Article 17-A proceeding. It typically requires attorney involvement to guide petitioners through the legal process of obtaining a guardianship to safeguard an individual. Every situation is different, and it is always recommended that potential petitioners consult with a professional well-versed in Article 81 matters to help determine the best course of action for an individual’s situation and ongoing needs.

Understanding Guardianships in New York State: Article 17-A of the Surrogate’s Court Procedure Act

Submitted on Wed, 04/22/2015

An article 17-A guardianship petition is used when one wants to appoint a guardian for an intellectually disabled[1] or developmentally disabled person, or for a person diagnosed with a traumatic brain injury. The guardianship process can appear complicated, but the process is streamlined and can be done without the assistance of an attorney. Understanding the process of an Article 17-A guardianship can make it easier.

Once a person reaches the age of 18, he/she has the right to make decisions independently, just like any other adult. No other person has the authority to make personal, medical and/or financial decisions for the individual, including that person’s parents or other legal guardian. However, what happens when the individual has an intellectual or developmental disability and lacks the ability to make decisions? This is where an article 17-A guardianship comes into play. It provides a process where another individual (often a parent, relative or a legal guardian) is granted guardianship over the individual such that they are given broad authority to make decisions on behalf of their ward. A guardian can be an individual, a non-profit corporation, or a public agency.

Article 17-A guardianships are specifically used for individuals living with an intellectual disability or a developmental disability that began prior to reaching 22 years of age (including disabilities attributable to cerebral palsy, neurological impairment and autism), and those diagnosed with a traumatic brain injury.

The first step in obtaining a 17-A guardianship is to file a petition with the Surrogate’s Court located in the individual’s county of residence. Those eligible to petition the Court include a parent, any interested adult, or the intellectually disabled or developmentally disabled person themselves, if they are at least 18. A non-profit corporation with the power to serve as guardian can also petition the Court, such as a social services agency that cares for or houses intellectually and/or developmentally disabled persons.

The petition must be accompanied by certifications from two professionals that the individual needs a guardian. The professionals can be either two physicians or a physician and a psychologist. They must determine that the individual has an intellectual disability or developmental disability which is permanent or likely to continue indefinitely.

Once you have filed the petition and sworn affidavits from the professionals with the Court, the law requires that certain persons be served with copies of the petition and/or a notice of the proceeding. The Court will subsequently hold a hearing to determine whether the guardianship will be granted. In certain circumstances, the Court may dispense with the need for a hearing.

If the Court grants the appointment of a guardian, letters of guardianship are issued. Once declared a guardian, you have broad authority to make decisions on behalf of the disabled person, similar to the authority parents have over minor children. These decisions can include health care decisions, financial and property matters, and housing.

As a guardian, you must make all decisions in the best interest of the individual. If the individual’s wishes, including moral and religious beliefs are known, they should be taken into consideration.

The length of a guardianship lasts for the length of the individual’s life. The Court may be petitioned to discharge the guardian, appoint a successor, modify or limit the guardian’s powers, or otherwise alter the guardianship order. You may also appoint successor guardians, in the event that the ward outlives you.

The forms used to petition the Surrogate’s Court for an article 17-A guardianship can be found online at: While the forms may be self-explanatory, the process itself can be overwhelming and confusing for people to navigate, especially in a situation where one is faced with the tremendous responsibility of caring for the major aspects of another’s life. It is always helpful to reach out to a professional that is well-versed in guardianship matters to determine whether an Article 17-A is the appropriate tool to help a person living with a disability, as well as to explain the process of obtaining a guardianship and the duties that accompany the guardianship appointment.

In our next segment, we will discuss guardianships under Article 81 of the Mental Hygiene Law. While most would agree it is a more complex proceeding, it provides a guardianship scheme that is tailored to the individual needs of the person, while at the same time affording the person as great amount of independence as possible.

[1] Article 17-A has not yet been amended to replace the term “mental retardation” with “intellectual disability,” but for the purposes of this blog, “intellectual disability” will be used in acknowledgment that the term has replaced “mental retardation” in many states. Notably, in 2010 the NYS Office of Mental Retardation and Developmental Disabilities changed its name to the NYS Office For People With Developmental Disabilities. That change brought New York into solidarity with 48 other states which acknowledged that the term “mental retardation” is often hurtful and disrespectful when used to refer to individuals living with an intellectual disability.