MHL ARTICLE 81 - New York State Unified Court System

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Matter of Rita R., 26 AD3d 502; 811 N.Y.S.2d 89(2 Dept. 2006)
During an Article 81 proceeding held in Surrogates Court the AIP was found to be incapacitated and
also to have been lacking capacity during the preceding two years when she executed certain legal
instruments including a POA, HCP, Trust and Will. Pursuant to MHL 81.29(d) the Surrogate’s
Court voided the POA, HCP and Trust. On appeal, the Appellate Division upheld the Surrogate
Court’s order and also modified it to also invalidate the Will.
Matter of Shapiro, 2001 NY Misc LEXIS 1359; 225 NYLJ 75 (Sup. Ct., Nassau Cty. 2001)
(Rosetti, J)
Elderly IP transferred all $680,000 of her assets to neighbors who recently began helping her,
although there were relatives in the picture who had been supportive. Despite presumption of
capacity, evidence of dementia shifted burden to recipients of transferred funds to show that transfer
was not due to undue influence or incompetence. Court voids transfer. Court noted that while it is
bound to consider wishes and desires of IP, it is only bound to consider "competent" wishes
consistent with IP's best interest.
I. Guardian may waive professional privileges on behalf of ward
Matter of Colby, 187 Misc.2d 695, 723 N.Y.S.2d 631 (Surr. Ct., NY Cty., 2001) (Surr. Roth)
Guardian, as personal representative, may waive attorney-client privilege on behalf of ward. (As of
this writing, as a result of Colby, there is a proposed amendment to CPLR 4501 (4501-a) granting
guardians and other personal representatives the power to waive professional privileges after the
death or disability of the person whom they represent.)
J. Guardian's power to protect ward's assets
Matter of Kent, 188 Misc.2d 509; 729 N.Y.S2.nd 352 (Sup. Ct., Dutchess Cty., 2001)
(Pagones, J.)
Where guardian believe that AIP's prior attorney-in-fact had misappropriated funds belonging to IP,
guardian properly sought and was granted an accounting under MHL §81.44 where following four
factors existed: (1) fiduciary relationship; (2) entrustment of money or property; (3) no other remedy;
and, (4) demand and refusal of accounting. Court reasoned that guardian had duty to protect ward
assets under MHL §81.20 (6)(iii) and needed power to do that.
K. Least restrictive alternative/Deprivation of liberty
Application of Hodges, 1/14//2010, NYLJ 35 (col.4) (Surr. Ct. NY Cty)(Surr. Webber)
Application under Article 81 for guardianship was resolved by creation of SNT to receive and mange
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