MHL ARTICLE 81 - New York State Unified Court System

appellant's 91-year-old client and counsel’s failure to comply with two court orders intended to
facilitate findings on exact nature of her disabilities.
st
Matter of Donald F.L. (Mollen), 242 A.D.2d 536; 662 N.Y.S.2d 75 (1 Dept., 1997)
Courts refusal to remove guardian unless IP appear for psychological evaluation by court- appointed
psychiatrist and for deposition was not improper. Further, there was insufficient evidence to support
finding that IP had become able to provide for his personal needs or manage his affairs.
I. Discontinuance
Matter of Lee J.P. (Bond), 45 A.D.3d 774; 847 N.Y.S.2d 110 (2nd Dept., 2007)
Where the AIP died before the proceedings were completed and a guardian was appointed, the court
issued an order and judgement terminating the proceeding. That same Order and judgement also
directed one of the AIP’s sisters to repay a sum of money to the AIP’s estate based upon the
allegation that she had misappropriated those funds. The Appellate Division held that the latter
directive must be reversed because the trial court had no authority to proceed beyond a dismissal of
the proceeding as academic except for allowing reasonable compensation to the court evaluator and
counsel.
Matter of Chackers (Shirley W.), 159 Misc.2d 912; 606 N.Y.S.2d 959 (Sup. Ct., NY Cty.,
1993)
Court concludes that discontinuance is proper although Art. 81 makes no specific provision for same.
Legislature surely did not intend to cause needless hearings. Even without hearing, if all factors
suggest that no guardian is needed, and all parties agree, Legislature's purpose is met. Discontinuance
must be by court order not stipulation.
Matter of Krishnasastry, NYLJ, 8/25/95, p. 25, col. 1 (Nassau Sup.)(Rossetti, J.)
Petitioner husband, involved in divorce action, instituted and then discontinued guardianship
proceeding for his wife. At issue was who should pay fees of court-appointed evaluator and attorney.
It apparently was unlikely that incapacity of the wife could have been proven. Court, noting
petitioner’s partially self-interested motivation for instituting guardianship proceeding and noting
wife’s lack of cooperation, ruled that husband must pay two-thirds and his wife must pay one-third.
Matter of Falick (Mann), NYLJ, 1/19/96, p. 25, col. 6 (Sup. Ct., NY Cty., Miller, J.)
Hospital had petitioned for guardian for an 85-year-old stroke victim. Prior to court’s determination,
she was discharged to nursing home. On recommendation of court evaluator, proceeding was
discontinued because patient continued to functionally improve in therapy and executed a durable
power of attorney to her “devoted, responsible, and caring” niece. Court evaluator also felt that her
remaining functional limitations did not impact on her personal needs and property management as
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