MHL ARTICLE 81 - New York State Unified Court System

Matter of Doar, NYLJ, 1/7/10, 42 (col. 1)(Sup. Ct. Queens Cty, Index # 14560/08)(Thomas, J.),
nd
aff’d, 72 A.D.3d 827; 898 N.Y.S.2d 465 (2 Dept., 2010)
As part of the Art 81 proceeding, petitioner sought to establish that the AIP lacked capacity when
she entered into a reverse mortgage and also that she has signed the agreement under duress. The
court shifted the burden of proof to the lender to show that the lender has complied with its duty
under the National Housing Act to fully counsel the borrower and to show that the lender knew that
the borrower had capacity to enter in to the agreement., and, then, when the lender could not meet
this burden, the court voided the reverse mortgage.
S.S. v. R.S., 24 Misc.3d 567; 877 N.Y.S.2d 860 (Sup. Ct. Nassau Cty. 2009) (Murphy, J.)
After an evidentiary hearing held to determine the stated wishes of the subject of the proceeding, a
petition pursuant to MHL 81.02(a) for special guardianship to make heath care decisions and a
related petition pursuant to PHL 2992(1, 3) voiding a heath care proxy issued by the AIP to his wife
prior to suffering a heart attack and resultant severe brain damag were both denied. Petitioners, the
siblings of the AIP, were unable to overcome the evidence that their brother’s stated wishes, despite
his Orthodox Jewish background, and some confusing language in the Heath Care Proxy instrument,
were to be removed from life support, thus they were unable to establish that the heath care agent,
his wife, was acting contrary to his stated wishes. Since the Heath Care Proxy was held valid, the
court found that there was no need for the appointment of special guardian.
Matter of May Far C., 61 A.D.3d 680; 877 N.Y.S.2d 367 (2nd Dept. 2009)
Order and Judgement of the trial court appointing a temporary guardian was reversed and remitted
upon a finding that the trial court had improvidently exercised its discretion in appointing a guardian.
The court held that the evidence adduced at the hearing had established that the AIP had effectuated
a plan for them management of her affairs and possessed sufficient resources to protect her well
being, thus obviating the need for a guardian. The Court further found that although the evidence
demonstrated that the AIP was incapacitated at the time of the hearing, there was no evidence that
she had been incapacitated when she granted her daughter Power of Attorney and further there was
no evidence that the chosen Attorney-in-Fact had engaged in any impropriety with respect to the care
of the AIP or her assets.
Matter of Bell, 57 A.D.3d 397; 869 N.Y.S.2d 486 (1st Dept. 2008)
Appellate Division affirmed decision of trial court to set aside a conveyance of real property by an
AIP to her son, where he failed to demonstrate by clear and convincing evidence that the sale of
property to him at a price significantly less than market value was voluntarily and understandingly
made, and fair and free of undue influence. The record showed that the sale of the property was
made just one week after the AIP had executed a will providing that he was to purchase his sisters'
interest in the property after the AIP's death and within 90 days after appraisal of the property. The
sale, however, was effected with no notice to his sisters, and despite the fact that the AIP had a long-
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