MHL ARTICLE 81 - New York State Unified Court System

it was a jury trial, the court found that the violation of the privilege was harmless error since medical
testimony was not required and there was sufficient independent evidence of functional incapacity
based upon non-medical evidence.
Matter of Kustka, 163 Misc.2d 694; 622 N.Y.S.2d 208 (Sup. Ct., Queens Cty., 1994)
Medical testimony is not required in all Article 81 proceedings. Article 81 does not mandate medical
testimony and, even when medical testimony might be necessary, an individual's disease or
underlying medical condition is only one factor to be considered since focus of Article 81 is one's
functional limitations. Functional limitations can be determined without medical testimony, since
non-medical person can determine whether individual is capable of dressing, shopping, cooking,
managing assets, and performing other similar activities. Also, Article 81 provides for guardianship
tailored to meet individual's needs, and to create limited guardianship.
nd
Matter of Rimler (Richman), 164 Misc.2d 403; 224 A.D.2d 625; 639 N.Y.S.2d 390 (2 Dept.,
1996); lv. to app. denied 88 N.Y.2d 805; 646 N.Y.S.2d 985 (1996)
AIP appellant alleged that trial court's decision to appoint guardian was based largely on psychiatric
testimony, and contends that she should have been afforded opportunity to challenge that testimony
with the testimony of a court-appointed independent psychiatrist. Appellate court found that trial
court based its determination upon statements and testimony of all witnesses, not merely upon
psychiatric testimony, and held that nothing in Article 81 mandates medical testimony in
guardianship proceeding.
Matter of Donald Loury (Loury), 1993 N.Y. Misc. LEXIS 633; NYLJ, 9/23/93, p. 26, col. 2
(Surr. Ct., Kings Cty.)(Surr. Leone)
AIP was found locked in apartment into which he refused entry, requiring family to drill locks, found
dressed in dirty clothes; unshaven, holding a bible surrounded by trash bags, debris, numerous
containers of liquid appearing to be urine; strong small of feces present; and no running water in
building. AIP owned several investment properties which were all in disrepair and in default of real
estate taxes. Court concludes that AIP’s present functional level and functional limitations impair
his ability to provide for personal needs and to manage property; that he cannot adequately
understand and appreciate nature and consequences of such inability; and that he is likely to suffer
harm because of such inability and lack of understanding. Court notes that AIP refused to speak to
psychiatrist who nevertheless diagnosed him as bi-polar and paranoid schizophrenic, but noted that
no such testimony was need to establish functional impairment.
Matter of Seidner, NYLJ, 10/8/97, p. 25, col. 1 (Sup. Ct., Nassau Cty.)(Rossetti, J.)
Medical evidence upon which petitioner sought to rely was excluded because it was privileged.
Privilege is not waived merely by defending an action and denying allegations, so long as defending
party does not affirmatively assert his stable mental condition. AIP’s privacy concerns were
particularly important here because of context of petition (bitter marital dispute).
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