MHL ARTICLE 81 - New York State Unified Court System

Matter of Aida C. (Heckle), 67 A.D.3d 1361; 891 N.Y.S.2d 214 (4th Dept 2009)
Court declined to find a violation of the IP’s due process rights because the trial court had
required her to testify. The court cited to MHL §81.11 requiring the presence of the AIP at the
hearing so that a court can obtain its own impression of the AIP’s capacity and also cited to
existing case law rejecting the contention that an AIP’s 5th amendment rights are violated by
requiring her testimony.
Matter of Heckl, 44 A.D.3d 110; 840 N.Y.S.2d 516 (4th Dept., 2007)
Although acknowledging that an AIP’s liberty is at stake in an Article 81 proceeding, citing the
nature of an Article 81 proceeding as being about care and treatment and non-criminal, the Court
declined to find that the AIP’s 5th amendment right against self incrimination was implicated by the
AIP’s desire to refuse to speak to the Court Evaluator. This AIP had counsel of her own choosing.
The court held that although a Court Evaluator may be dispensed with under 81.10 when there is
counsel for the AIP, that exception only applied when there were financial constraints preventing
the appointment of both and that was not the case here. The Court did however also hold that while
it could not dispense with the appointment of the Court Evaluator, it also could not compel the AIP
to speak to the Court Evaluator because the duties imposed by the statute were upon the Court
Evaluator to interview the AIP but not upon the AIP to be interviewed. Likewise, the Court held that
it could not hold the AIP in contempt for refusing to speak to the Court Evaluator.
Matter of A.G. (United Health Services), 6 Misc.3d 447; 785 N.Y.S.2d 313 (Sup Ct., Broome
Cty., 2004)(Peckam, J.)
AIP may not be compelled by petitioner to testify help petitioner meet his burden. Due Process and
CPLR 4501 require that an AIP in an Article 81 proceeding have the right to assert the 5 th
amendment privilege against self incrimination because the potential deprivation of liberty inherent
in taking away one’s right to make decision about his own person and property.
Matter of Allen, 10 Misc.3d 1072A; 814 N.Y.S.2d 564 (Sup. Ct. Tompkins Cty., 2005)
(Peckham, J.)
Brother who was entitled to and did receive notice of the proceeding was not therefore a party. He
would not be considered a party unless he filed a cross petition seeking relief that was not requested
in the petition. Therefore, he could not be granted an adjournment nor could he submit an answer.
While he could not participate as party in the hearing on the central issue of the need for
guardianship, he was considered a party to that part of the Order to Show that issued a TRO against
him. Moreover, he was permitted to call the AIP as a witness since this part of the proceeding was
in the nature of a civil proceeding involving the discovery of property and was not, as prohibited by
the United Health Services case (above), a proceeding in which compelling AIP’s testimony could
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serve to infringe upon the AIP’s liberty in violation of the 5 amendment.
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