MHL ARTICLE 81 - New York State Unified Court System

Matter of Ethan Hylton, 2005 NY Misc LEXIS 8310; 233 NYLJ 4 (Surr. Ct., Bronx
County) (Surr. Holtzman)
Although not the issue in the case, this case evidences another instance in which the Public
Administrator was appointed as Article 81 Guardian.
Matter of Family and Children’s Association (RH), 15 Misc.3d 112A; 838 N.Y.S. 2d 339 (Sup.
Ct. Nassau Cty, 2007)(Diamond, J.)
Where a not-for-profit charitable agency moved to be relieved of it’s responsibility as Art. 81
guardian for a an indigent woman, alleging that it lacked the resources to provide the tremendous
level of support that she needed, and further alleged that it had spent a considerable sum of its own
resources to maintain the IP and her dysfunctional family, the court granted the application to be
relieved, found that even if there were sufficient funds to pay a private guardian the responsibility
would overwhelm an individual guardian and that only a public entity had the ability to serve this
IP and appointed the County Department of Social Services pursuant to MHL 81.19(a) (2) to be the
public guardian.
Matter of Keith H., unpublished, Sup.Ct., Hamilton Cty. (Montgomery County Spec. Term)
(Index # 6296–06) (Sept 18, 2006) (Sise, J.)
The Consumer Advisory Board (“CAB”) formed under the Federal Court “Willowbrook Decree”
to protect the class members against dehumanizing practices and violations of their individual or
legal rights does not automatically have powers of a guardian under Article 81 and, did not
automatically have the authority to retain counsel on behalf of a profoundly retarded class member
to prosecute a tort claim for an automobile accident until, after a full Art. 81 proceeding where
appropriate findings were made, it was first appointed as guardian.
Matter of Ethan Hylton, NYLJ, p. 26, 1/6/05 (Surrogate Ct, Bronx County) (Surr Holtzman)
Although not the subject of this brief case, it is worth noting that in this case, the Public
Administrator was named the Article 81 guardian.
rd
Matter of Patrick "BB", 284 A.D.2d 636; 735 N.Y.S.2d 731 (3 Dept., 2001)
MHL §81.19(e) prohibits appointment of Commissioner of OMRDD as guardian of property where
OMRDD is a creditor of AIP and there is no evidence that there no other party without a conflict of
interest who could be appointed instead. Guardian must be neutral and disinterested person. Under
same logic, court also holds that under NYSARC's charter, it may be also be a potential creditor and
therefore, NYSARC may not be appointed special guardian.
Court also holds that neither MHL §13.29 nor §29.23 authorize the Commissioner of OMRDD to
hold the funds in any other capacity short of guardianship, such as "SNT-like account".
122