MHL ARTICLE 81 - New York State Unified Court System

In the Matter of the Application of GWC, 4 Misc.3d 1004A; 791 N.Y.S.2d 869(Sup. Ct.,
Tompkins Cty. 2004)(Peckham, J.)
Where evidence showed that father of a mildly mentally retarded woman was not a nurturing parent,
was not the primary caregiver during his daughter’s lifetime, had no real understanding of her
limitations as a mentally retarded adult, and was doling out only $10/week of her funds to her, court
appoints AIP’s siblings as co-guardians of the person and property, despite the fact that they had
secured a Power of Attorney from her which they used to withdraw a large sum of money from am
account her father maintained for her and put the money into an account in their own names. The
Court found, based upon the facts adduced at hearing, the court evaluator’s recommendation, and
the AIP’s nomination of her siblings, that these inappropriate acts we motivated by a concern for the
AIP and were an effort by the siblings to help the AIP gain access to her own funds then under her
father’s unreasonable control.
th
Matter of Flight, 8 A.D.3d 977, 778 N.Y.S.2d 815 (4 Dept. 2004)
App. Div. affirms lower court decision appointing AIPs brother as his guardian and rejects, without
discussion of the facts, the contention by petitioner that the non-family members she proposed
should have been appointed instead.
rd
Matter of Kathleen FF, 6 A.D.3d 1035; 776 N.Y.S.2d 609 (3 Dept 2004)
The guardian nominated by AIP was a family member (niece) who lived out of state. Another family
member contested the niece’s appointment because she was also the trustee and beneficiary of
several trusts that she had set up for the AIP while holding the POA. Court finds after hearing that
the niece was a proper guardian because (a) there was evidence of love between the AIP and her
niece; (b) the niece was handling the financial matters of other family members as well; (c) there
was no evidence of wrongdoing by the niece; and (d) the court would be monitoring the financial
dealings of the guardian.
nd
Matter of Nasquan S., 2 A.D.3d 531; 767 N.Y.S. 2d 906 (2 Dept. 2003)
Petitioner was the AIP’s mother. She sought to be appointed guardian and to have the attorney
appointed as co-guardian. The trial court refused to appoint the attorney as co-guardian and instead
appointed a third party stranger. In reversing the trial court, the Appellate Division stated: “The case
law in this firmly establishes that a stranger will not be appointed as guardian of an incapacitated
person “unless it is impossible to find within the family circle, or their nominees, one who is
qualified to serve.”
Matter of Bertha W., 1 AD3rd 603; 767 N.Y.S. 2d 657 (2nd Dept. 2003)
Appellate Division modifies order to eliminate appointment of non-family member co-guardian of
the property stating that there is a preference for family members unless it is impossible to find a
qualified family member to serve and that there was no showing that the AIP’s nephew required a
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