MHL ARTICLE 81 - New York State Unified Court System

eports concerning her son, and, in fact, was held in contempt and fined for each visit she refused
to allow. She also refused to cooperate with a court appointed parent coordinator. She continued
to refuse visits and pay fines. She also had no telephone service at home and did not respond to
efforts by the parent coordinator to contact her, which she attributed to a lack of money to pay phone
bills. The father eventually moved to have her removed as guardian and to be appointed as successor
guardian in her stead. Despite the court noting her loving and supportive attention to her son, the
court nevertheless removed her as guardian and transferred guardianship to the father, noting that
the father did not pose a threat to his son, that it was in the son’s best interest to have a relationship
with his father, that the father was willing to allow liberal contact between the mother and son, and,
that the court could no longer tolerate the mother’s defiance of court orders.
Nostro v Dafni Holdings et al, 23 Misc3d 1128A; 889 N.Y.S.2d 506 (Sup. Ct. Kings Cty., 2009)
(Rivera, J.)
A guardian who was also the sole beneficiary of the IP’s estate brought suit against a third party on
behalf of the IP. The third party sought to have the guardian removed and a GAL appointed for the
IP in the instant case arguing that the Guardian could not be truly independent since he had a stake
in the outcome of the case as the IP’s only heir and thus was motivated by self interest. The court
held that while it was possible that the guardian’s future pecuniary interest may have been a motive
for him starting the lawsuit, it was equally possible that he was pursuing the action in the IPs best
interest as was his responsibility as a fiduciary. There was nothing about the prosecution of the
lawsuit that would have adversely affected the IP and the fact that the guardian might someday
benefit if the plaintiff was successful in the suit did not establish that a conflict of interest existed
requiring that the Guardian be removed or a GAL be appointed.
Matter of Joseph D., 55 A.D.3d 907; 865 N.Y.S. 2d 909 (2nd Dept 2008)
Where the power of attorney held by the appellant was not a sufficient resource for the management
of the IP’s property and the attorney in fact was unsuitable to serve in the capacity of guardian, the
court properly appointed an independent guardian.
Matter of Audrey D., 48 A.D. 3d 806; 853 N.Y.S.2d 143 (2nd Dept. 2008)
A nominated guardian must be appointed unless the court determines for good cause shown that such
appointment is not appropriate. The court found that although the AIP nominated her father to be her
guardian, that he was not a suitable choice because he had no plan for finding, and did not know how
to acquire, adequate housing for AIP given her limited financial resources.
Matter of Anonymous, 41 A.D.3d 346; 839 N.Y.S.2d 78 (1st Dept., 2007)
Appellate Division upheld the trial court’s determination to appoint the AIP’s sons as co-guardians
stating that there was no evidence that the sons were unfit to serve and that there is a preference for
family members unless they are unfit or there is a conflict among family members rendering their
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