MHL ARTICLE 81 - New York State Unified Court System

a. Presence of AIP at hearing / Bedside hearings
Matter of Alice Zahnd, 27Misc.3d 1215A; 2010 NY Misc. LEXIS 907 (Sup. Ct. Suff. Cty.
(Luft, J.)
Where, according to the court, the AIP elected not to appear, the court drew a negative inference
based on her non- appearance.
Matter of Lillian UU, 66 A.D.3d 1219; 887 N.Y.S. 2d 321(3rd Dept. 2009)
The Appellate Division, citing to MHL 81.11(c), reversed an order extending guardianship over an
IP who was residing in an out-of-State nursing home because the hearing was held outside her
presence, there was medical evidence that she could have expressed her wishes but would likely have
refused to participate or might have been agitated if she did participate, and the trial court’s order
failed to recite its reasons for concluding either than she had been unwilling to attend or that her
presence would not have resulted in meaningful participation to explain its conducting of the hearing
outside her presence.
Matter of Lillian A., 20 Misc.3d 348; 860 N.Y.S.2d 382 (Sup. Ct., Delaware Cty., 2008)
(Peckham, J.)
An Article 81 guardian was appointed by a New York court after a bedside hearing, while the AIP
was a patient in a hospital in New York. The Order provided, among other things, that the guardian
had the power to change the IP’s place of abode and also that the guardianship was for a limited
durations and subject to being extended upon further motion at a later date. The guardian then
changed the place of the IP’s abode to an out-of- state nursing home. When the Order was expiring,
the guardian moved in the New York court to extend his powers. The New York Court held that (1)
it did have jurisdiction over the IP even though she was now out-of-state because, although the
guardian had the power to transfer her abode, he did not have the power to and did not change her
domicile and (2) if a judicial proceeding is begun with jurisdiction over the person it is within the
power of the State to bind that party by subsequent orders in the same cause. Having established
that jurisdiction existed , the court then held that because the IP was then “not present in the state”
under MHL 81.11 (c)(1) the IP’s presence at the hearing could be waived.
Matter of E.H., 13 Misc.3d 1233A; 831 N.Y.S.2d 352 (Sup.Ct., Bronx Cty., 2006)(Hunter, J.)
Court waived AIP’s presence at hearing and conducted hearing in her absence because she refused
to come to court for the hearing even though arrangements were made by the hospital to bring her
to court. AIP did not want to discuss the proceedings at the hospital and left the room even though
her attorney was present.
Matter of C.F.R., 2006 N.Y. Misc. LEXIS 2867; 236 N.Y.L.J. 15 (Sup Ct., Bronx Cty. 2006)
Petitioner daughter sought to have a guardian appointed for respondent, her 90 year old mother, an
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