MHL ARTICLE 81 - New York State Unified Court System

of rights and interests of AIP. Moreover, to put cross-petitioner in position wherein she may be both
grantor and recipient of AIP’s property is to create situation in which appearance of, and potential
for, actual impropriety are manifest. Any decision she might make by which she could enjoy
immediate or future pecuniary benefit would be subject to scrutiny and doubt. Court should not
knowingly allow state of events to evolve that will burden cross-petitioner with specter of future
criticism, and create doubt and conflict about decisions intended to benefit AIP.
Matter of Priviteri (Goldstein), NYLJ, 10/29/95, p. 27, col. 3 (Bronx Sup.)(Friedman, J.)
Where petitioner for guardianship of property was AIP’s presumptive heir, there was conflict of
interest because guardian stood to seek to enlarge estate for his own benefit, rather than that of ward.
After considering size of estate, nature and closeness of familial relationship between proposed
guardian and AIP, proposed guardian’s financial circumstances, and motivation of proposed
guardian, court avoided appearance of impropriety and conflict of interest by appointing AIP’s sister
as personal needs guardian and nephew plus a co-guardian to be appointed later as her property
management guardian.
Matter of Parsoff, NYLJ, 6/6/95, p. 38, col. 5 (Rockland Sup.)(Weiner, J.)
Where both AIP’s daughter and husband sought appointment as guardian, and there was history of
conflict between petitioners with actions pending in Family Court alleging unlawful conduct and
asset misappropriation, courts appoints daughter as guardian of person, refuses to appoint husband
at all because he had been uncooperative with Social Services and refused to disclose available
assets, and appoints local lawyer as property guardian.
(ii) Public agencies
Matter of Marian E.B., 38 A.D.3d 1204; 832 N.Y.S.2d 374 (4th Dept., 2007)
Although there had been clear and convincing evidence introduced by petitioner hospital that the
AIP, one of its patients, was incapacitated and in need of a guardian, the trial court nevertheless
denied the petition for the reason that the petitioner had failed to propose a person or corporation
available and willing to serve. The court made that finding because a representative of DSS had
testified that DSS was not willing to accept the guardianship of respondent because he did not know
if DSS could ‘adequately or appropriately meet every one of respondent's needs.’ The Appellate
Division reversed and remanded for further proceedings holding that MHL 81.08 (12) provides that
the petition shall include, inter alia, the name of the proposed guardian, if any, and thus does not
require that the petition include a proposed guardian. The court did not comment on DSS's refusal
to take the case or its apparent statutory mandate to do so.
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