MHL ARTICLE 81 - New York State Unified Court System

Matter of Kufeld, 23 Misc3d 1131A; 889 N.Y.S.2d 882 Sup. Ct.. Bronx Cty., 2009) (Roman, J.)
Although petitioner demonstrated by clear and convincing evidence that the AIP was presently
incapacitated, the court declined to appoint a guardian because the AIP had executed sufficient
advanced directives when he was competent and there was no evidence of that the agent appointed
by those instruments had abused her authority.
S.S. v. R.S., 24 Misc.3d 567; 877 N.Y.S.2d 860(Sup. Ct. Nassau Cty., 2009) (Murphy, J.)
After an evidentiary hearing held to determine the stated wishes of the subject of the proceeding, a
petition pursuant to MHL 81.02(a) for special guardianship to make heath care decisions and a
related petition pursuant to PHL 2992(1, 3) voiding a heath care proxy issued by the AIP to his wife
prior to suffering a heart attack and resultant severe brain damage were both denied. Petitioners, the
siblings of the AIP, were unable to overcome the evidence that their brother’s stated wishes, despite
his Orthodox Jewish background, and some confusing language in the Heath Care Proxy instrument,
were to be removed from life support, thus they were unable to establish that the heath care agent,
his wife, was acting contrary to his stated wishes. Since the Heath Care Proxy was held valid, the
court found that there was no need for the appointment of special guardian.
Matter of May Far C., 61 A.D.3d 680; 877 N.Y.S.2d 367 (2nd Dept., 2009)
Order and Judgement of the trial court appointing a temporary guardian was reversed and remitted
upon a finding that the trial court had improvidently exercised its discretion in appointing a guardian.
The court held that the evidence adduced at the hearing had established that the AIP had effectuated
a plan for the management of her affairs and possessed sufficient resources to protect her well being,
thus obviating the need for a guardian. The Court further found that although the evidence
demonstrated that the AIP was incapacitated at the time of the hearing, there was no evidence that
she had been incapacitated when she granted her daughter Power of Attorney and further there was
no evidence that the chosen Attorney-in-Fact had engaged in any impropriety with respect to the care
of the AIP or her assets.
Estate of Slade, NYLJ, Jan. 18, 2007, p. 31, col 7 (Surr. Ct., New York County) (Surr. Glenn)
Court holds that although EPTL § 5-1.1-A(c)(3) does not specifically list an attorney-in-fact among
the fiduciaries that may exercise the right of election, the Court allowed an attorney-in-fact to do so
because the interests of the attorney-in-fact and principal were aligned. This ruling is consistent with
the trend of increased use of a durable power of attorney as a means to avoid the need for an Article
81 guardian.
Matter of Daniel TT., 39A.D.3d 94; 830 N.Y.S.2d 827 (3rd Dept. 2007)
Summary judgment dismissing a petition for guardianship was reversed on appeal. Although the AIP
had issued a Power of Attorney, health care proxy and other advanced directives in the past to one
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