MHL ARTICLE 81 - New York State Unified Court System

T. Order to Gain Access
Matter of Eugenia M., 20 Misc.3d 1110A; 2008 NY Slip Op 51301U (Sup.Ct. Kings Cty., 2008)
(Barros, J.)
Application for an Order to Gain Access pursuant to SSL §473 - c.1 permitting APS to enter AIP’s
residence with a locksmith was denied where: (a) the petition did not allege danger or risk to the AIP
sufficient to warrant the access order; (b) the alleged need to enter the apartment was motivated by
petitioner’s desire to obtain additional evidence to use against the AIP to meet its burden of proving
the need for a guardian; (c) the AIP in fact did open her door to speak to APS through the door and
also did leave her apartment each day to go shopping thus APS already had access to the AIP’s
person; and, (d) APS had already evaluated the AIP and determined that she was in need of
protective services. The court clearly held: “to use an Order to Gain Access to collect evidence in
an MHL Article 81 proceeding is impermissible. The sole permitted use of an Order to Gain
Access is for assessing an individual’s need for adult protective services.” (emphasis added.)
U. Commission and Bond
Matter of Karen T., 91755/10, NYLJ 1202500683817, at *1 (Sup, Ct. Bx, Cty. Decided June
14, 2011)
A guardian moved for an order reducing the amount of the bond required for one year from the date
of the entry of such order. The guardian had applied to obtain a bond in the amount initially required
however, the surety company was unable to issue a bond in that amount because the current value
of the guardianship assets was less than the required amount. The assets were a structured
settlement, paid in increasing monthly sums, the full amount of which was not fully realized in the
first year. Accordingly, the guardian sought to have the bond reduced to reflect the actual amount
of the current guardianship assets. Citing MHL §81.25(a) the court reduced the amount required but
ordered that upon expiration of the one year period, the guardian shall once again make application
to the court after a recommendation by the court examiner and submission of a copy of the annual
accounting, as to whether or not the bond should remain the same or be increased.
Matter of C.C., 27 Misc.3d 1215A; 2010 NY Slip Op 50759U; 2010 N.Y. Misc. LEXIS 917 (Sup.
Ct. Bronx Cty. 2010)(Hunter, J)
A guardian was appointed but failed to file for a Commission or file a bond as required by the order
appointing her. After spending the IPs money to pay the IPS bills, including legal fees for
petitioner’s counsel, the purported guardian then applied to resettle the order to, among other things,
reduce the amount of the bond required since there was now less money in the account than when
the order was originally signed. The court declined to resettle the order to reflect the lower bank
balance since, at the time of its order, the full amount was in the account and the guardian had
expended it without proper authority.
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