MHL ARTICLE 81 - New York State Unified Court System

Matter of Farah P., 11/7/08 NYLJ 27, col 1, Family Ct , Kings Cty., 2008)
In a proceeding under Art 10 or 10 A of the Family Court Act, where a child over the age of 18 is,
by reason of mental illness or a developmental disability, incapable of understanding the
proceedings, assisting counsel and protecting his rights, a guardian ad litem must be appointed for
the young adult pursuant to CPLR 1201 and 1202. While a law guardian may substitute his
judgement for a minor, once the child reaches his or her 18th birthday, the law guardian functions
merely as the attorney for the young adult and may not substitute his judgement.
Matter of Addo, 2001 NY MISC LEXIS 1349, 218 NYLJ 64 (Sup.Ct., Bronx Cty 1997)
Parents petitioned under Article 81 for guardianship of their disabled son and further sought to make
withdrawal from the infant's funds to pay for the infant's necessities and for other extraordinary
expenses; including, but not limited to the purchase of a house, the payment of an annual salary to
the mother for care giver services rendered to the infant, and withdrawal of an amount to provide
medical insurance for petitioners and their family. In analyzing the requests, the court held that the
purpose of Article 81 was to create a guardianship law to meet the needs of elderly persons but that
nothing in the statute precludes its use for the young. It noted that Article 81 is silent with respect
to the parental obligations and responsibilities of the parents to provide support for the incapacitated
child. The court looked to CPLR Article 12 caselaw to find that parents with the ability to do so are
obligated to support a child, even if the child has an estate of his or her own. Stating that
[p]etitioners could have chosen to seek the relief they requested either under MHL Article 81 or
CPLR Article 12 ..... As regards to an infant, neither the obligations of parental support nor the
protective mantle of the court is swept aside or in any way diminished by the election of Article 81,
as the vehicle for the appointment of a guardian and the application for withdrawals from the infant's
account. The provisions of Article 81 and of CPLR Article 12 must be brought into logical harmony
where an infant becomes the subject of an Article 81 proceeding, since the child's right to parental
support is not thereby forfeited, nor as a result is public policy to protect the welfare of children cast
aside.
Ianazzi v. Seckin, NYLJ, 12/9/02 (Sup. Ct., Kings Cty.)(Pesche,J)
Although not the issue in this case, this is an example of a case in which there is an Art 81 guardian
for a minor.
Matter of Guardianship of B., 190 Misc. 2d 581;738 N.Y.S. 2d 528 (Sup. Ct., Tompkins Cty.
2002)(Peckham, A.J.)
There would be no rational basis, and, therefore, a denial of equal protection of the laws for saying
that the ability of a guardian for a mentally retarded person to consent to medical treatment of the
ward should differ if the guardian is appointed under Article 81 rather than Art 17-A. Therefore an
Art. 81 guardian can consent to a tubal ligation for an IP.
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