MHL ARTICLE 81 - New York State Unified Court System

of his daughters, his other daughter, the petitioner, had, in the petition challenged the validity of
those instruments, alleging that the AIP already lacked capacity when he issued the advanced
directives, that the directives were issued under duress, and that the daughter who held the powers
was failing to carry out her fiduciary duties to the AIP. Moreover, the Court Evaluator’s report, and
an affirmation submitted by the AIP’s long time personal attorney raised similar questions which
lead the Court Evaluator to move for permission to review the AIPs medical/psychiatric records and
to have him examined. Therefore, the Appellate Division held that it was error for the trial judge to
summarily dismiss the petition before the petitioner and Court Evaluator had the benefit of discovery
and a hearing to establish that the AIP did not, in fact, have valid and sufficient alternative resources
that obviated the need for guardianship.
Matter of Estate of Raymond A. Teufel, 15 Misc.3d 1109A ; 839 N.Y.S.2d 437 (Surr. Ct., Erie
Cty., 2006) (Surr. Howe)
SCPA 220(1) provides that any bequest to an incapacitated individual be paid to the guardian of such
person. A bequest was made to a woman who, at the time of the probate proceeding, was 90 years
old and suffering from severe Alzheimer’s disease. She did not have a guardian, having years earlier
executed a valid power of attorney thereby obviating the need for a guardian. Citing to Matter of
Murray which she had recently authored, this Surrogate reiterated that there was no need to appoint
a guardian in light of the public policy behind Article 81 that there be liberal use and recognition of
the efficacy of powers of attorney. The court stated that a formal plan for handling the incapacitated
person's property interests validly established by her should not be lightly set aside or disregarded
by the courts.
Estate of Murray, 14 Misc.3d 591; 824 N.Y.S.2d 864 (Surr. Ct., Erie Cty. 2006)
Although many Surrogate's Courts in this State, as a policy, have been interpreting SCPA 401, 402
and 403 to mean that a validly appointed attorney-in-fact may not appear on behalf of a disabled
individual in an estate administration proceeding because the statutes do not enumerate them in the
list of parties who may appear, the court revisited, and changed that policy in light of the public
policy behind Article 81 that there be liberal use and recognition of the efficacy of powers of
attorney. The court stated that a formal plan for handling the incapacitated person's property interests
validly established by her should not be lightly set aside or disregarded by the courts.
Matter of Lando, 11 Misc. 3d 866; 809 N.Y.S.2d 901 (Surr Ct, Rockland Cty 2006) (Surr.
Berliner)
Attorney-in-fact was permitted to exercise right of election and there was no need to wait for
appointment of an Article 81 guardian to accomplish same.
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