MHL ARTICLE 81 - New York State Unified Court System

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Matter of Louis G., 39 A.D.3d 546 ; 833 N.Y.S.2d 202 (2 Dept., 2007)
The Appellate Division determined that it was error for the trial court to deny objections to a final
accounting without first permitting the objectant an opportunity to cross-examine the conservator
on all of the written submissions, given that the objectant had raised substantial questions on a
number of material issues and the objectant had not waived her right to cross-examination.
Matter of Daniel TT., 39 A.D.3d 94; 830 N.Y.S.2d 827 (3rd Dept. 2007)
Summary judgment dismissing a petition for guardianship was reversed on appeal. Although the AIP
had issued a Power of Attorney, health care proxy and other advanced directives in the past to one
of his daughters, his other daughter, the petitioner, had, in the petition challenged the validity of
those instruments, alleging that the AIP already lacked capacity when he issued the advanced
directives, that the directives were issued under duress, and that the daughter who Held the powers
was failing to carry out her fiduciary duties to the AIP. Moreover, the Court Evaluator’s report, and
an affirmation submitted by the AIP’s long time personal attorney raised similar questions which
lead the Court Evaluator to move for permission to review the AIPs medical/psychiatric records and
to have him examined. Therefore, the Appellate Division held that it was error for the trial judge to
summarily dismiss the petition before the petitioner and Court Evaluator had the benefit of discovery
and a hearing to establish that the AIP did not, in fact, have valid and sufficient alternative resources
that obviated the need for guardianship.
Matter of William J.J., 32 A.D.3d 517; 820 N.Y.S. 2d 318; (2nd Dept., 2006)
In the 9th Judicial District, one judge sits in the Guardianship Accounting Part ("GAP") to review
and confirm the reports of the Court Examiners in all of the counties of the 9th District. When
confirming the Court Examiner’s report the instant case, the GAP judge, in two orders, also: (1)
added the requirement that the guardian be required to file a bond even though the appointing judge
who issued the Order and Judgment had dispensed with a bond; (2) deleted the provision of the
Order and Judgment providing that the guardian could draw an annual salary as compensation from
the assets of the IP and added that the guardian was required to obtain prior court approval before
taking a Commission, and, (3) curtailed the power granted in the Order and Judgment that allowed
the guardian to retain professional services of attorneys and accountants etc. with the IP’s funds
without prior court approval. The Appellate Division held that the GAP judge had exceeded his
authority under MHL §81.32 to alter the guardian’s compensation because such compensation can
only be altered if the guardian had violated MHL 81.32(c); that the GAP judge exceeded his
authority when he modified the guardian ’s powers to pay the professional fees without prior court
approval because that power was reserved to the appointing judge, and even the appointing court
could not act sua sponte, but only upon application of the guardian, the IP or any other person
entitled to commence a proceeding and only then upon notice and hearing; and that the GAP judge
has also erred in directing the filing of the bond in the absence of such provisions in the original
Order and Judgement.
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