MHL ARTICLE 81 - New York State Unified Court System

Case Summaries
I. RELATIONSHIP BETWEEN ARTICLE 81 & OTHER PROVISIONS OF LAW
A. MHL Article 78
Will of Josephine Brucato, 7/17/09 N.Y.L.J. 28, (col. 3) (Surr Ct. Kings Cty.)(Surr. Johnson)
SCPA 1402 has not been amended to reflect the fact that committees and conservators have been
replaced by guardians under Article 81 of the Mental Hygiene Law. Nonetheless, a guardian of a
legatee has standing to petition to probate a will.
Matter of Dennis Diaz, NYLJ, 7/6/04, p. 21 (Sup. Ct, Queens Cty.)(Taylor, J.)
After an Article 81 hearing, a disabled man was found to be in need of a guardian of the person and
property. He was found, among other things, to have the functional level of approximately a 5 th
grader and specifically to be in need of assistance in handling his own finances. Before a guardian
could be bonded and qualified, he retained counsel and entered into a contract of sale to purchase
a tavern with his own funds. Under pre-Art 81 law, contracts entered into by persons adjudicated
incompetent and who have committees or conservators are presumptively void. Contracts with
persons who do not have committees or conservators but are of unsound mind and unable to
appreciate the consequences of their own actions were considered voidable. Article 81 does not
result in a finding of incompetence but rather only findings of specific functional limitations and
guardianship powers tailored to be the least restrictive form of intervention. This AIP was found to
lack the ability to handle his own finances so here, the Court does void and revoke the contract.
Matter of D.S. , NYLJ, 10/31/01, (Sup. Ct., Suff. Cty.) (Berler, J.)
Although CPLR 1201 refers to service of legal papers on incompetents and conservatees and it
should also be construed to include incapacitated persons for whom Art. 81 guardians have been
appointed.
Matter of Stephen D., 190 Misc2d 760, 739 N.Y.S.2d 913 (Surr. Ct., Bronx Cty. 2000)
(Hotzman, Surr.)
Where MHL Art 77 conservator dies after date of repeal of MHL Art.77, court can fill the vacancy
by appointing an Art. 81 guardian and it is at the discretion of the court whether to hold a hearing
under MHL §81.38.
Matter of Lois "F" (Ruth "F"), 209 A.D.2d 856; 618 N.Y.S.2d 920 (3d Dept., 1994)
Where committee was properly appointed under MHL Art. 78, appointment survived repeal of
Article 78 and enactment of MHL Article 81. Legislature plainly intended to give full force and
1