MHL ARTICLE 81 - New York State Unified Court System

to pay the legal fees for MHLS as counsel for the AIP. In so doing, the court stated: “The fee
shifting provisions of MHL Article 81 are designed not only to be just but are also intended to
discourage frivolous guardianship petitions and those motivated by avarice and bad faith”.
Matter of Monahan, 17 Misc.3d 1119A; 851 N.Y.S.2d 71 (Sup. Ct., Nassau Cty, 2007)
(Iannucacci, J.)
Where the petition was: (1) false in at least one material fact in that it alleged that the AIP was in
need of 24 hour care when she was already receiving 24 hour care; (2) commenced only to gain a
financial advantage in a pending proceeding in Surrogate’s Court; and, (3) not withdraw by the
petitioner after it had become clear that there was no merit to the allegations causing undue delay
and costs, the court held that the petitioner had engaged in frivolous conduct as defined by 22
NYCRR 130-1.1 and directed the petitioner to pay all counsel fees and the court evaluator fee by a
date certain. The court further held that if said fees were not paid by that date each counsel could
enter a money judgement for the amount awarded without further notice upon an affirmation of noncompliance
and the clerk shall enter judgement accordingly.
Matter of G. S., 17 Misc. 3d 303; 841 N.Y.S.2d 428 (Sup. Ct., New York Cty, 2007) (Hunter,
J.)
Proceeding was brought by nursing home because AIP’s son and attorney-in-fact had paid only a
portion of the outstanding nursing home bill from the proceeds of the sale of the AIP’s home. The
nursing home’s theory was that the power of attorney should be voided because the son was
breaching his fiduciary duty. The Court held that he had established that he had used his mother’s
funds responsibly and soley for her benefit and stated “The purpose for which this guardianship
proceeding was brought, to wit, for the nursing home to be paid for its care of [the AIP], was not the
legislature’s intended purpose when Article 81 of the MHL was enacted in 1993.” The fees of the
court evaluator and petitioner’s counsel were assessed against the petitioner nursing home.
Matter of S.K., 13 Misc.3d 1045; 827 N.Y.S.2d 554 (Sup. Ct. Bronx Cty., 2006) (Hunter, J.)
AIP had functional limitations but also had sufficient and valid advanced directives in place as
alternative resources. The nursing home where the AIP resided brought an Article 81 proceeding
solely for the purpose of collecting it’s bill because the AIP’s wife, who held the POA, was not
paying because she believed the Long Term Care policy should payout. The Court stated: “The
purpose for which this guardianship proceeding was brought, to wit, for the nursing home to
be paid for its care of the [AIP] was not the Legislature‘s intended purpose when Article 81
of the MHL was enacted in 1993.” The Court imposed all costs of the proceeding upon the
petitioner.
Matter of Williams, 12 Misc.3d 1191A; 824 N.Y.S.2d 770 (Sup. Ct., Kings Cty. 2006)(Belen,
J.)
Court denied motion of petitioner nephew’s attorney to be paid out of the AIP’s funds finding that
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