MHL ARTICLE 81 - New York State Unified Court System

potential to act as a disincentive and thus deny an incapacitated person the protection the court is
obligated to provide.
Matter of Sills, 32 A.D.3d 1157; 821 N.Y.S.2d 313 (4th Dept. 2006)
The Appellate Division describes as “well settled” the principle that “a guardian ad litem is not
authorized to apply to the court for approval of a proposed settlement of [the claim of an adult
adjudicated incompetent] ... Instead the right to apply for court approval of a proposed settlement
and to receive the settlement proceeds is granted to a guardian appointed in accordance with Mental
Hygiene Law Article 81.”
Matter of Lainez, 11 Misc. 3d 1092A; 819 N.Y.S. 2d 851 (Sup. Ct. Kings Cty.)(Johnson,
J.)(2006)
An incapacitated person was in a permanent vegetative state allegedly as a result of medical
malpractice. The attorney prosecuting the medical malpractice case sought to have a GAL appointed
instead of seeking an Article 81 guardian, asserting that appointment of a GAL was more efficient
in that it was more quickly accomplished and consumed fewer judicial and legal resources. The
court found that appointment of a GAL in lieu of an Article 81 Guardian was not in the best interests
of the incapacitated person because, due to her total disability she was in need of a plenary guardian
for all of her affairs and further, because the GAL would not, by law, have the power to settle the
lawsuit. The court opined that the GAL’s limitations would discourage settlement, drag the
resolution of the case on for years and deprive the incapacitate person of a potential financial
settlement that could allow for her to be placed in a facility that would provide better care for her.
The court stated: “The simpler procedure for obtaining a [GAL] was not created for the purpose of
testing the waters first to determine the feasibility of a monetary recovery and then, if a recovery is
achieved, commencing proceedings for an Article 81 guardian. The type of guardians sought should
be based on the best interests of the incompetent, not the convenience, economy or ease of the
appointment.
Matter of Bernice B., 176 Misc.2d 550; 672 N.Y.S. 2d 994 (Surr. Ct., NY Cty., 1998)
GAL cannot bind ward to settlement against her wishes in absence of formal adjudication under
Article 81. See, also, Matter of Bernice B., 179 Misc.2d 149; 683 N.Y.S.2d 713 (Surr. Ct., NY Cty.,
1998).
Estate of Wilcox, NYLJ, 12/2/99, p. 37 (Surr. Ct., Nassau Cty.)(Radigan J.)
Court directs GAL in probate proceeding to consider commencing proceeding for Article 81
guardian who can establish SNT or pooled trust with inherited funds.
12