MHL ARTICLE 81 - New York State Unified Court System

to AIP, who loses no rights to conduct her own affairs as result of order.
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Matter of Patrick “BB”, 267 A.D.2d 853; 700 N.Y.S.2d 301 (3 Dept., 1999)
Although case was mooted out, facts show instance where Supreme Court appointed special guardian
who was directed to increase AIP’s personal account, establish burial account for respondent, and
pay balance of funds to petitioner, after deducting expenses and compensation for special guardian.
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Matter of Gambuti (Bowser), 242 A.D.2d 431; 662 N.Y.S.2d 757 (1 Dept., 1997)
Involuntary commitment to nursing home by special guardian is not authorized. Protective
arrangements and transactions as contemplated by Art. 81 are far less intrusive and therefore
mechanism for appointment of special guardian under section 81.16 (b) inadequately addresses
liberty concerns of AIP in context of involuntary commitment. Appointment of full guardian is
required for nursing home placement.
Matter of Wingate (Mascalone), 169 Misc.2d 701; 647 N.Y.S.2d 433 (Sup. Ct., Queens Cty.,
1996)
Court revoke attorney-in-fact's power-of-attorney where attorney-in-fact refuses to sell AIP's
cooperative apartment to render her Medicaid eligible and enable her to remain in nursing center,
and appoints special guardian to effectuate sale, since attorney-in-fact, as agent for principal AIP,
has not exercised utmost good faith toward AIP.
Matter of Luby, 180 Misc.2d 621; 691 N.Y.S.2d 289 (Sup. Ct., Suffolk Cty., 1999)
Court finds that nursing home should have applied for special guardian rather than take power-ofattorney
from resident where purpose of powers was for nursing home to be paid.
In re: Phlueger, 181 Misc.2d 294; 693 N.Y.S.2d 419 (Surr. Ct., NY Cty., 1999)
Court appoints special guardian even thought there was also general Art. 81 guardian appointed,
where there may have been conflict of interest on specific issue.
Matter of Janczek, 167 Misc.2d 766; 634 N.Y.S.2d 1020 (Sup. Ct., Ontario Cty. 1995)
Court appointed Commissioner of Social Services as a special guardian, pursuant to §81.16 (b) for
limited purpose of providing adult protective services, pursuant to Social Services Law §473, in form
of arranging for visiting nurse or other home health care services and arranging regular medical
examinations by AIP’s current physician. Although AIP’s life could perhaps have been extended
by placement in adult care facility, a special guardian for these limited purposes was appointed to
permit her to return to her home and enjoy quality of life which she has previously experienced with
her friends and family.
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