MHL ARTICLE 81 - New York State Unified Court System

of proof is on the person opposing termination of the guardianship, and that the standard of proof
is clear and convincing evidence that the guardian’s authority should not be terminated.
Matter of Alexandre Penson, 289 A.D.2d 155; 735 N.Y.S.2d 51 (1st Dept., 2001)
Where evidence showed that IP was now living independently with his wife in Florida, understands
his limitations and has sought the advice of an attorney and financial consultants in formulating a
plan that both secures his financial future and affords him a current level of independence and selfdetermination,
guardian was discharge and IP was restored to capacity status. A trust find created
in NY by the guardian was dissolved and the funds were transferred to a Florida trust created by the
IP. Since the transfer would take place prior to an accounting of the NY trust, certain reserves were
properly withheld pending the final accounting to satisfy possible claims against the NY trust for
legal fees and health care expenses. The court noted that the IP could meet his needs in Florida
without these reserve funds.
nd
Matter of Donald F.L., 242 A.D.2d 536; 662 N.Y.S.2d 75 (2 Dept., 1997)
Courts refusal to remove guardian unless IP appear for psychological evaluation by court-appointed
psychiatrist and for deposition was not improper. Further, there was insufficient evidence to support
finding that IP had become able to provide for his personal needs or manage his affairs.
Matter of Warshawsky, NYLJ, 1/9/95, p. 30, col. 4 (Sup. Ct., Kings Cty.)(Leone. J.)
IP petitioned for discharge of guardian on ground that he was no longer incapacitated. Two
employees of nursing home said his condition had improved enough for discharge, and friend said
she would assist him with cooking and shopping at home. However, psychiatrist and guardian said
he still required nursing home care. Court discharged guardian finding that IP was capable of
exercising the power that had guardian's authority.
rd
Matter of Lee “I” (Murphy), 265 A.D.2d 750, 697 N.Y.S.2d 385 (3 Dept., 1999)
IP seeks to have guardian discharged but court finds clear and convincing evidence that IP still in
need of guardian.
H. Multiple wards
Matter of Hammons (Hazel E., Nancy E., Neil E.), 164 Misc.2d 609, aff’d 237 A.D.2d 439; 656
nd
N.Y.S.2d 875 (2 Dept., 1997)
Court appoints single guardian for dysfunctional family of three, including aging fragile parents and
adult daughter, even though daughter is not providing assistance into them in the home and is
preventing others from helping them as well.
143