MHL ARTICLE 81 - New York State Unified Court System

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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. 247
Collected and compiled by: Lesley De Lia, Director Mary Stevens, Mineola office librarian (with the assistance of Barbara Desrosiers, Ana Begonja, Susan Tran) Jonathan Weiner - Law Intern, and Jessica De Lia (proofreading/cite checking/typing) 248
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C. Voiding questionable marriages a
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N. Change of IP’s domicile.......
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(ii) Counsel for Cross - petitioner
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L. Appeals ........................
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effect to prior determinations. Mat
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Matter of John J.H., 27 Misc. 3d 70
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Matter of Forcella, 188 Misc. 2d 13
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Matter of Farah P., 11/7/08 NYLJ 27
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Matter of Saks, NYLJ, 9/15/97, p. 2
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potential to act as a disincentive
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D. Powers of attorney/health care a
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of his daughters, his other daughte
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made on the theory that the AIP mad
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Haymes v. Brook Hospital, 287 A.D.2
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probate upon a finding that the ind
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th Matter of Estate of Rose McClosk
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the support. The Appellate Division
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I. Collections Matters Matter of G.
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disagreement with her father’s ch
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cart, her hygiene was described as
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nd In the Matter of Joseph S., 25 A
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guardian is warranted under Mental
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d Matter of Marguerite VV, 226 A.D.
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where 62-year-old respondent husban
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Matter of Jospe (Grala), NYLJ, 1/30
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C. Voiding questionable marriages a
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declaration that the AIP’s marria
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Matter of Jayne Johnson, 172 Misc.2
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Matter of Marmol (Pineda), 168 Misc
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conduct the litigation. Sasscer v.
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for any other cause which to the co
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Surry Hotel Assoc., LLC v. Sabin, N
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approve it, the divorce could not b
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Matter of M.L., 25 Misc. 3d 1217A;
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transferred to a facility eligible
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Matter of Baird, 167 Misc.2d 526; 6
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Matter of Mattei, 169 Misc.2d 989;
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transfer of additional assets that
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the application without prejudice t
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payments for medical care and did n
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there may be no recovery by the Sta
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Matter of Lauro, 44 A.D.2d 951; (19
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NYS Association for Retarded Childr
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e. Creation of SNT/Proper petitions
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Matter of the Application of Wachov
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had he been presented with the opti
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trust prior to its funding (SCPA 40
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easonableness by the court. (ii) Am
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Matter of De Las Nueces, NYLJ, Augu
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Matter of Hector S., 11/18/09 NYLJ,
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Palmara v. Palmara, 2011 NY Slip Op
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Simar Holding Corp. v GSC, 27 Misc3
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time family attorney, she was repre
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een able to understand questions su
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nd Matter of Rita R., 26 AD3d 502;
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her friend and neighbor to be her g
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Matter of Guardianship of B., 190 M
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to withhold and/or withdraw life-su
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DID change the domicile because the
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IV. GUARDIANS A. Proper guardians (
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discharge of guardianship duties pr
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prohibited his appointment and that
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co-guardian to assist him in carryi
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care. He also sold AIP’s home and
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Matter of Ethan Hylton, 2005 NY Mis
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it is noted that the niece lived in
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a Medicaid application and for peti
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to include the power to do extensiv
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D. Protective Arrangements/Single T
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F. Breach of fiduciary duty/removal
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Matter of Joshua H. (Anonymous), 80
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Matter of Rebecca P., 24 Misc. 3d 1
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substantial guardianship assets as
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Matter of Gerald J. Friedman, NYLJ,
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d Matter of Boice, 226 A.D.2d 908;
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I. Compensation nd Matter of Verna
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lawfully be required to serve witho
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part of MHL Art 79; (3) that MHL Ar
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Matter of Nicks, NYLJ, 1/29/98, p.
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with an independent co-guardian of
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Federal Court for alleged violation
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proceeding. The law firm failed to
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Matter of Harry G., 12 Misc. 3d 232
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alleging that there was information
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declined to accept the transferred
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Matter of S.A.W., June 5, 2007, NYL
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in interest, his or her residence c
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whether such powers are appropriate
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wanted to terminate its relationshi
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practice for 6 months and ordered t
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d Matter of Grace “PP”, 245 A.D
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to pay the legal fees for MHLS as c
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Matter of Naimoli (Rennhack), NYLJ,
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(v) Non-petitioning Nursing home Ma
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. To whom fees paid (i) Retained co
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attorney appointed pursuant to sect
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at the amounts it awarded to the Co
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days before the trial date the part
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nd Matter of Tijuana M., 303 A.D.2d
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Estate of Marguerite Porter, 2007 N
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also consider the best interests of
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Page 207 and 208: Matter of G. S., 17 Misc. 3d 303;84
Page 209 and 210: dismissed. Matter of Maier, NYLJ, 2
Page 211 and 212: F. Hearings (i) Hearing required Ma
Page 213 and 214: In the Matter of The Application of
Page 215 and 216: a. Presence of AIP at hearing / Bed
Page 217 and 218: Matter of Whitehead, 169 Misc.2d 55
Page 219 and 220: (iii) Applicability of rules of evi
Page 221 and 222: d Matter of Ruth “TT”(Mc Ghee),
Page 223 and 224: Matter of Tara X., NYLJ, 9/18/96, p
Page 225 and 226: Evaluator’s claim that opening th
Page 227 and 228: f. Information Subpoenas Matter of
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Page 231 and 232: of the NY Article 81 proceeding and
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Page 241 and 242: cases, emergency and rent-control c
Page 243 and 244: of a guardian, it had failed to mak
Page 245 and 246: Matter of John D., 9/15/09 NYLJ 40
Page 247 and 248: Matter of Lainez, 11 Misc.3d 1092A;
Page 249 and 250: d Matter of Lee “I” (Murphy), 2
Page 251 and 252: Division affirmed . See related cas
Page 253 and 254: th Matter of Peer (Digney), 50 A.D.
Page 255: grounds: (1) a cause of action for
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MHL ARTICLE 81 - New York State Unified Court System

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