MHL ARTICLE 81 - New York State Unified Court System

Matter of Turner (Iluyomade a/k/a Felix), 2002 NY Slip Opinion 50062U (will not be published
in official reporter); 2002 NY Misc. LEXIS 108
Although Commission on Fiduciary Appointments found abuses in guardianship appointments and
said that it was improper to appoint counsel and/or court evaluators as guardians because there would
be a conflict of interest when there were funds involved, but no conflict to appoint the court
evaluator if there were no funds involved, the Legislature has not set up an absolute bar to such
appointments. Thus, here, where indigent Nigerian AIP had stroke after start of the Art. 81
proceeding and required temporary guardian to make medical decisions, and wife and son were not
competent to make such decisions due to their own limited judgment, court faced with no other
options, appoints counsel and court evaluator who had developed trusting relationship with AIP to
serve pro bono. Court expresses concern over having rules apply differently to AIPS without funds
and also expresses opinion that the abuses found by the Commission on Fiduciary Appointments
were not characteristic of the guardianship bar.
(v) Creditors as Guardians
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 denied the
petition for the reason that the petitioner had failed to propose a person or corporation available and
willing to serve. DSS had testified that it could not accept guardianship because it could not meet
all of the AIP’s needs. The Appellate Division reversed and remanded for further proceedings,
noting that the fact that the hospital was also a creditor of the AIP’s did not automatically disqualify
it from serving as guardian, citing to MHL 81.19(e).
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".
(vi) Conflict of Interest, Generally
Matter of AG ( Restaino), 950 N.Y.S.2d 687; 2012 N.Y. Misc. LEXIS 4162 (Sup.Ct.Nass. Cty
2012 )(Diamond, J)
The Court appoints the petitioning nursing home as Special Guardian of the property to complete
125