MHL ARTICLE 81 - New York State Unified Court System

her friend and neighbor to be her guardian. This friend was not physically able to help bath and dress
AIP. The only matter in dispute was AIP’s place of abode. AIP was in psych hospital at the time
of the petition and hearing. The treatment team maintained that she could be discharged only to an
assisted living facility or adult home. The AIP wanted only to return home to her own apartment.
While in the hospital, she met another patient who happened to be a licensed home health aide. This
woman needed a job and a place to live. She and the AIP agreed that she would assist the AIP in
exchange for room and board. Citing MHL §81.22 (A)(9) the court held that the availability of less
restrictive alternative resources in the community dictated that the AIP should not be removed from
her home and granted the guardian the power to change the AIP’s abode only subject to further court
order.
Matter of Lauro, NYLJ, 9/7/01, p. 17 (Sup. Ct., Onondaga Cty.) (Wells, J.)
Court denies a petition for guardianship where there was already an SNT in existence who would
serve the same function stating: "Article 81 is designed to promote the use of the "least restrictive
form of intervention" (MHL 81.01) ...Guardianship... no matter how noble, is still a deprivation of
a person rights.”
L. Major medical/end of life decisions
(i) Pre-Family Health Care Decisions Act
Matter of Russell, Article, NYLJ, 3/4/03, p.1, col.3 (decision on transcript, Sup. Ct., Nass. Cty.,
nd
Rosetti, J., Jan. 23, 2003 (copy in Mineola and also distributed to MHLS 2 Dept. staff under
separate cover) NO LONGER THE LAW, SEE, THE FAMILY HEALTH CARE DECISIONS
ACT ENACTED ON MARCH 17, 2010
Guardian, Family and Children’s services, was appointed for IP. The guardian was not granted end
of life decision making powers. In 1991, IP signed a Health Care Proxy (HCP) when she was
competent stating that she did not want artificial nutrition or hydration under any circumstances.
There was no precondition that she have irreversible brain damage or terminal illness. In the 1991
HCP she named her nieces as her proxy. In 1995 she executed a Living Will that also said no
artificial nutrition or hydration but includes the pre-condition that she be suffering from a terminal
illness with irreversible brain damage. IP then executed a 1999 HCP. This time she named one
Roger Russell as her proxy to act as HCP but she did not address the end of life issues in specifics
in that document. In 2003, when IP was terminally ill, Roger Russell wanted to keep her on life
support. The court sua sponte conducts an O’Connor hearing to determined the IP’s prior express
intent. The court finds that putting the patient on life support this is contrary to the IPS wishes as
expressed in the earlier HCP and Living Will and that such was her only expression of intent. Court
finds that the latter HCP which did not address the end of life decision, did not cancel out the express
intent in the previous instruments and therefore, the court voids the latter HCP and empowers the
guardian to make the end of life decision consistent with the IP’s express intent as found by the
Court.
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