MHL ARTICLE 81 - New York State Unified Court System

guardian. No useful purpose would be served by jury since no factual issue presented as to need for
personal needs and property management guardian for AIP. It is function of court, not jury, to
determine who will be appointed guardian and powers of guardian.
(vii) Court's consideration of best interest and wishes of AIP
Matter of Willie C., 2009 N.Y. App. Div. LEXIS 6194 ; 65 A.D.3d 683 (2nd Dept 2009)
Citing the trial court’s obligation to protect the best interests of the AIP, the Appellate Division
upheld the trial court’s refusal to accept a stipulation between the parties because that did not
adequately protect the interests of the AIP.
Matter of Shapiro, 2001 NY Misc LEXIS 1359; 225 NYLJ 75 (Sup. Ct., Nassau Cty.)(Rosetti,
J.)
Elderly IP transferred all $680,000 of her assets to neighbors who recently began helping her,
although there were relatives in the picture who had been supportive. Court voids transfer, noting,
inter alia, that while it is bound to consider wishes and desires of IP, it is only bound to consider
"competent wishes consistent with IP's best interest."
(viii) Burden of proof
Matter of Eugenia M., 20 Misc.3d 1110A; 2008 NY Slip Op 51301U (Sup. Ct. Kings Cty.,
2008) (Barros, J.)
Court states in dicta that a petitioner has the burden of proving his case and cannot rely upon the
Court Evaluator to establish his case for him. Court also stated that the burden of proving risk to
the AIP cannot be met by a petitioner’s “speculation” about “hypothetical future .... events.”.
(Cross reference: see detailed description of facts of this case under “FUNCTIONAL
LIMITATIONS section of this document).
nd
Matter of Marvin W., 306 A.D.2d 289; 760 N.Y.S.2d 337 (2 Dept., 2003)
App. Div. reverses order of Supreme Court that denied, without hearing, IP’s application to terminate
the guardianship. Court holds that MHL §81.36(c) requires that a hearing be held, that the burden
of proof is on the person opposing termination of the guardianship, and that the standard of proof
is clear and convincing evidence that the guardian’s authority should not be terminated.
Matter of Shapiro, 2001 NY Misc LEXIS 1359; 225 NYLJ 75 (Sup. Ct., Nassau Cty.)
(Rosetti, J.)
Elderly IP transferred all $680,000 of her assets to neighbors who recently began helping her,
although there were relatives in the picture who had been supportive. Despite presumption of
capacity, evidence of dementia shifted burden to recipients of transferred funds to show that transfer
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