MHL ARTICLE 81 - New York State Unified Court System

Matter of Guardianship of B., 190 Misc.2d 581; 738 N.Y.S.2d 528 (Sup. Ct., Tompkins Cty.,
2002)(Peckham, J.)
Where order appointing guardian provides that no sterilization procedures should be performed
without further hearing and with a GAL for the IP, and the IP and guardian petition for such
procedure to be authorized, court (1) finds that IP, who wants the tubal ligation, has the capacity to
make decision for herself and that such would be the least restrictive alternative and (2) that the
guardian can be authorized to under MHL §81.22 to make major medical decisions in the best
interest of the IP and in accordance with the IP’s wishes so that guardian can also be authorized to
make the decision here.
(ii) Family Health Care Decisions Act
a. Legislative Intent
Matter of AG (Restaino), 2012 N.Y. Misc. LEXIS 4162 (Sup. Ct. Nass. Cty, 2012 )(Diamond,
J)
Court holds that a residential facility/hospital should not petition a court for the appointment of a
special guardian for the sole purpose of seeking medicaid benefits when the patient is clearly
incapacitated and clearly needs a guardian of the person, concluding that the legislative intent of the
FHCDA was to fill a gap and provide a procedure to facilitate responsible decision-making by
surrogates on behalf of patients who do not have capacity to make their own healthcare decisions and
it was never intended to a substitute for the appointment of a guardian of the person" pursuant to Art.
81. The Court reasoned that: (1) under the FHCDA, there is a presumption that an adult has decision
making capacity absent an adjudication or unless an Article 81 guardian is authorized to decide about
health care for the adult, therefore, a hospital's determination that a patient lacks decision making
capacity can be overridden by an incapacitated person who has not been deemed such by the court
under Article 81; and (2) the potential powers of a guardian of the person are more extensive than
the authority of a surrogate under the FHCDA. Therefore, although the petitioner nursing home did
not seek appointment of a guardian of the person, after making a finding that the AIP lacks capacity
to make persona decisions, the Court nevertheless did appoint the AIPS son as personal needs
guardian in addition to appointing the nursing home as Special Guardian of the property to complete
a Medicaid application.
b. Honoring Preferences of Person Facing Death
Matter of Zornow, 31 Misc3d 450; 919 N.Y.S. 2d 273 (Sup. Ct., Monroe Cty. 2010) (Polito,
J.), “clarified” at 34 Misc3d 1209A; 2011 N.Y. Misc. LEXIS 6441 (2012)
A guardian of the person was appointed to make major medical and end-of- life medical decisions
as the statutory surrogate under the Family Health Care Decision Act (FHCDA) for a ward who was
a devout Catholic. Under FHCDA the guardian was obliged to make that decision in accordance
106