MHL ARTICLE 81 - New York State Unified Court System

suggested that the work was really to make the home more comfortable for the daughter and her
family and it also appeared that the AIP’s condition was so debilitated that it was unlikely that she
would ever leave the nursing home to visits the daughter’s home in any event.
Matter of Williams, 12 Misc.3d 1191A; 824 N.Y.S.2d 770 (Sup. Ct., Kings Cty., 2006)
(Belen, J.)
Although AIP had freely given power of attorney to her grand nephew, the court found him unfit to
serve as guardian because his behavior had evidenced impropriety and self dealing. Moreover, at
the hearing, the AIP had clearly and unequivocally testified that she believed her grandnephew was
stealing from her and plotting to dispossess her of her home and assets and that she wanted nothing
to do with him anymore. The court recited the following evidence that the grandnephew was unfit
to serve: (1) he had a conflict of interest because he had a vested in the AIP’s testamentary estate,
a life-long reliance on his grandaunt for his own financial needs and a belief, despite all evidence to
the contrary, that his grandaunt wished to continue to support him; (2) while in control of her assets,
even after she had revoked the power of attorney, he wrote more than $18,000.00 in checks to
himself and deposited over $6,000 meant for her account into his own account, (3) he acknowledged
the disappearance of approximately $200,000.00 from the AIP’s account's during the time period that
he had a valid power of attorney, a matter which was being investigated by the District Attorney;
(4) he had attempted to set up a situation whereby he could protect his own inheritance by causing
the AIP to disinherit her developmentally disabled adult son; and (5) he had moved her into a
nursing home that she did not need to be in, then moved into her apartment, removed her personalty
from the apartment, refused to return her keys, diverted her mail, and barred her church friends from
contacting her under the guise of helping her without her permission, based upon a power of attorney
that she had validly revoked.
Matter of Margaret S., 2006 N.Y. Misc LEXIS 2833; NYLJ July 14, 2006, p. 23, col. 1
(Sup. Ct. Richmond Cty.) (Giacobbe, J.)
Where there was acrimony between an AIP’s son and daughter, both of whom were loving adult
children capable of acting as guardian, the court, finding that it would be in the best interest of the
AIP to have both of her children involved, appointed the daughter as guardian of the property along
with an independent co-guardian of the property and the son as guardian of the person along with
an independent co-guardian of the person. The court notes that it is mindful of the history of
confrontation and disagreement between the siblings and the potential for further conflict between
them in their roles as guardians. The court stated that it therefore appointed independent coguardians
to exert a moderating influence.
Matter of S.M., 13 Misc.3d 582; 823 N.Y.S.2d 843 (Sup. Ct. , Bronx Cty. 2006) (Hunter, J.)
Petitioner, the AIP’s son sought to be appointed guardian. The petition failed to mention that he was
a convicted felon. Although the Court Evaluator, who did address the conviction in her report, told
the petitioner and his counsel that weeks before the hearing that Part 36 (22 NYCRR 36.2(c))
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