MHL ARTICLE 81 - New York State Unified Court System

proceeding. The law firm failed to disclose this conflict in its petition, or to the Court Evaluator or
to counsel for the AIP in the Art 81 proceeding. Moreover, during the proceedings, the petitioner
wanted to terminate its relationship with the firm in the Art 81 proceeding and also wanted to
consent to a cousin’s appointment as Guardian and the law firm tried to discourage the petitioner
from consenting to the cousins appointment, presumably because the cousin, as Guardian, could then
decide to hire new counsel for the med mal case. The court finds violations of DR5-105(a) and also
DR5 101 in that the law firms independent judgement was compromised by both its dual allegiances
and its own financial interests.)
rd
Matter of Mary “J.”, 290 A.D.2d 847; 736 N.Y.S.2d 542 (3 Dept. 2002)
Specificity in pleading requirement of MHL §81. 08 was met where the petition “detailed the nature
and extent of the [AIP’s] physical and mental disabilities through statements of her doctor and social
worker at the nursing home and asserted that despite these conditions and the assistance necessary
[the daughter seeking to care for the AIP and whom the AIP wanted to have care for her] had refused
to allow a social worker to conduct [a home visit]”.
Matter of Beritely (Luberoff), NYLJ, 12/8/95, p. 25, col. 1 (Sup. Ct., Suffolk Cty.) (Luciano,
J.)
Conservator sought to convert MHL Art. 78 conservatorship into guardianship. Court found petition
deficient for not describing functional level of man, who had bi-polar disorder. Court evaluator's
testimony and report, however, proved guardian was needed. Court named co-guardians for property
and allowed AIP's elderly mother to resign as co-conservator and become co-guardian of personal
needs.
Matter of Onondaga Cty. Department of SS (Parker), 162 Misc.2d 733; 619 N.Y.S.2d 238
(Sup. Ct., Onondaga Cty., 1994)
Petition denied for failure to comply with pleading provisions of §81.08 requiring petition to include,
inter alia, a description of AIP’s functional level, specific factual allegations as to personal actions
and/or financial transactions or other occurrences which demonstrate that person is likely to suffer
harm and approximate value and description of financial resources of person. Here, petition did not
contain any detailed information as required by that section and did not set forth any meaningful
facts pertaining to the AIP’s functional level. The only information provided was physician's note
that person does not understand his medical condition and that his ability to manage his own affairs
is impaired. Also petition is devoid of any specific factual allegations as to the personal actions or
financial transactions of person which illustrate that he is likely to suffer harm. Also, the AIP’s
refusal to divulge his financial resources may have been indication of awareness as opposed to
incapacity.
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