MHL ARTICLE 81 - New York State Unified Court System

discharge of guardianship duties problematic. The Court stated that although appellant was a person
close to the AIP, she was not a family member and that therefore her differences with the sons did
not amount to a conflict among family members justifying the appointment of an independent
guardian.
Matter of Bell, June 11, 2007, NYLJ, p. 22, col. 1 (Sup. Ct. NY Cty.) (McCooe, J.) aff'd 57
A.D.3d 397; 869 N.Y.S.2d 486 (1st Dept. 2008)
Court directs appointment of independent guardian on the ground that the AIP’s son, who held a
Power of Attorney, had been isolating his mother from other family members to her detriment and
was self dealing by converting his mother’s assets to his own use, including transferring real estate
to himself at a price more than1 million dollars below market value.
Matter of Nellie G., 74 A.D.3d 1065; 903 N.Y.S.2d 494 (2nd Dept 2010)
The Appellate Division reversed the trial court finding that the trial court had erred in appointing an
independent guardian in the place of the AIP’s daughter/attorney-in-fact. The Appellate Division
reasoned that an independent guardian should be turned to only as a “last resort” and that although
the daughter had engaged in certain improper real estate transactions, these transactions did not harm
the AIP’s interests and the daughter did not profit from them, therefore, she had not abused her
authority as attorney-in-fact and was not unfit to serve as her mother’s guardian.
Matter of Gladwin, 35 A.D.3d 1236; 828 N.Y.S.2d 737 (4th Dept. 2006)
In their respective wills signed in 1999, the parents of 12 children, including one disabled son,
named one of his 12 siblings as his guardian and another of his 12 siblings as the alternate guardian.
The trial court determined therefrom that the parents considered both parties to be acceptable
guardians. The court determined that after the parents died, although the physical needs of the
disabled sibling were being adequately met by the first sibling who has been living with and caring
for the elderly parents and the disabled sibling that the disabled sibling’s emotional and
developmental needs had been severely restricted to his detriment by his socially isolated living
environment. The court thus concluded that it was in the disabled sibling’s best interests to live with
the sibling named as alternate guardian and her family in another state, where he would have "a more
socially active and enriching life through organizations and groups which are specifically set up to
meet his needs," as well as unlimited access to all his siblings.
Matter of Mel S., 12 Misc.3d 1193A; 824 N.Y.S.2d 756 (Sup. Ct., Otswego Cty, 2006)
(Peckham, J.)
The Court identified financial self-dealing by the daughter who was petitioning for guardianship over
her mother and therefore appointed a neutral guardian of the property and appointed the daughter
guardian of the person only. The specific self-dealing was that the daughter used the AIP’s funds
allegedly to make their home handicapped accessible for the AIP so she could visit but the evidence
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