Article 81 of New York's Mental Hygiene Law was enacted as a result of heated debate concerning the abusive powers exercised by court-appointed conservators and committees over the person and property of their elderly wards under Articles 77 and 78 of the Mental Hygiene Law. Under these repealed guardianship statutes, an elderly person's due process rights were frequently violated by a judiciary which often took over three months to appoint a conservator or committee to manage his or her affairs.

Advocates of elder law reform vigorously argued that Articles 77 and 78 must be repealed to remedy the abuses being suffered by elderly persons under these guardianship statutes. After four years of legislative debate catalyzed by advocates for the elderly, Article 81 was enacted in 1992. The focus of Article 81 was to protect the elderly by establishing the procedures for the appointment of a guardian dedicated to the diverse and complex needs of incapacitated adults. The significance of this statute has been magnified by New York's growing elderly population and its need for an effective guardianship system.

Since it enactment, Article 81 has functioned successfully as a guardianship statute for the elderly. However, some courts have begun to apply Article 81 to guardianship proceedings for minors. Because Article 81 is an "Adult Guardian Statute" designed for a self-supporting elderly person, commencing guardianship actions for minors under Article 81 has raised questions about the statute's ability to protect children personally and financially.

This Note advocates that in light of the problems with applying Article 81 to minors, the statute should be amended to include infants, or in the alternative, the entire guardianship process should be reformed to address the specific needs of minors through the implementation of mediation.