MHL ARTICLE 81 - New York State Unified Court System

K. Defacto Guardians
Matter of April-Buxton Sinclair, 1 Misc.3d 903A; 781 N.Y.S.2d 628 (Surr. Ct.,Westchester Co.
2003)
Surrogate’s Court during probate proceeding compels defacto guardian to account for activities with
respect to descendent’s assets during decedent’s lifetime. Contains the quote: “It is well settled that
this court may deem a person to be a defacto fiduciary, even though he or she never qualified or was
authorized to act in a fiduciary capacity of that person undertook to duties and responsibilities
ordinarily assumed by a fiduciary ...” citations omitted.
L. Whether a Power is a Personal or Property Power
Matter of Mary XX, 33 A.D.3d 1066; 822 N.Y.S.2d 659 (3rd Dept. 2006)
Petitioner, guardian of the IP’s person but not property, moved for a compulsory accounting by the
trustees of the IP’s funds. The trust provided that during the IP’s lifetime the trustees were to pay
the income to the IP and, in their discretion, to pay the principal as needed "to provide adequately
and properly for the support, maintenance, welfare and comfort of [the IP]." The order appointing
petitioner as guardian of the person authorized her to direct the trustees to pay for the IP’s care and
maintenance and to examine all the relevant circumstances, including the opinion of treating health
professionals, the existing financial circumstances, and the existing physical environment as to what
may be the best place for...[IP ] to reside and the best arrangements for her continued care and
treatment. The trustees, however, refused to provide petitioner with financial documents when she
requested same, therefore, petitioner commenced a proceeding for a compulsory accounting in order
to fulfill her obligation as guardian. Supreme Court denied the requested relief, holding that
petitioner's powers as guardian of the person were limited to making demands of the trustees for
payment of expenses and that the guardian of the person had no powers relative to the financial
assets of the IP. The Appellate Division reversed finding that petitioner had made a sufficient
showing that the requested accounting is necessary in order to carry out her duties as guardian citing
four factors that justify ordering a compulsory accounting and explaining why they were met on
these facts: (1) a fiduciary relationship, (2) entrustment of money or property, (3) no other remedy,
and (4) a demand and refusal of an accounting. The Appellate Division also noted that authorizing
the accounting was not giving the guardian of the person powers over the property because petitioner
was not given the power to manage the financial but only information to exercise those particular,
limited powers conferred upon her in the guardianship order.
M. Rights and Immunity of Guardians
Frank Demartino v. Guardian Robert Kruger, Esq., Unpublished Memoranda, Orders and
Judgments (EDNY 7/24/09) (09-CV-119(JBW), 09-CV-305 (JBW), 09-CV-2578 (JBW)
Plaintiff, the son and former Attorney- in -Fact for his father, the IP, sued his father's Guardian in
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