MHL ARTICLE 81 - New York State Unified Court System

In the Matter of The Application of Joseph Meisels (Grand Rebbi Moses Teitlebum), 10 Misc.
3d 659; 807 N. Y. S. 2d 268 (Sup. Ct. Kings Cty., 2005) (Leventhal, J.)
An Article 81 petition was brought for guardianship over the Grand Rabbi of The Satmar sect. He
had previously appointed one of his sons and his longtime personal secretary as HCP and POA and
indicated in the HCP and POA that if there ever should be a guardianship proceeding, that these
would be the individuals whom he would want to be appointed. The initial pleadings did not allege
that there was anything defective about his previous appointments made several years earlier. After
respondent moved to dismiss the petition on the grounds that the existence of the HCP and POA
negated the need for a guardianship, petitioners only then alleged that the Rabbi has been
incompetent at the time he granted the HCP and POA. The court, after reviewing the affirmations
in support of this allegation found insufficient proof that he lacked capacity to grant the HCP and
POA at the time he made the appointments.
Borenstein v. Simonson, 8 Misc.3d 481; 797 N.Y.S.2d 818 (Sup. Ct. Queens Cty, 2005)
(Ritholtz, J.)
Health Care Proxy executed while AIP was competent did not provide instructions to agent for
dealing with artificial nutrition and hydration as required by PHL 2981(4) and 2982. AIP was on
an NG tube when her physicians sought authorization to insert a PEG. The Health Care Agent
refused to authorize the PEG and AIPs sister petitioned for a special guardian to make the
hydration/nutrition decisions. Petitioner also sought to void the HCP on the grounds that the agent
was not acting in the AIPs best interest or alternatively to declare that the agent was without power
to make decisions about hydration/ nutrition and to enjoin the Health care agent from interfering
with health care decisions about hydration and nutrition. Court declares that agent is without power
to make hydration/nutrition decisions but finds no basis for voiding the HCP. Case has excellent
discussion of the law of health care proxies and also on the Jewish Law on the subject of
withdrawing or withholding life sustaining treatment.
Matter of Mougiannis v. North Shore - Long Island Jewish Heath Systems, Inc., NYLJ,
nd
5/19/04, p. 19 (Sup. Ct., Nassau Cty., LaMarca, J.) 25 A.D.3d 230; 806 N.Y.S.2d 623 (2 Dept.
2005)
Health Care Agent is entitled under Public Health Law §2982(3) to medical information necessary
to make a decision about the principal’s health and providing such records to the Health Care agent
does not violate HIPAA. An unarticulated conclusion that may be drawn from this decision is that
to obtain these records, one need not be an Art 81 guardian with the specific authority to obtain the
records.
Matter of Julia C., NYLJ, Vol 49, pg. 20, 3/15/04 (County Ct., Nassau Cty) (Asarch, J.)
Court denies motion for summary judgment made by heath care agent/attorney-in-fact (AIPS
daughter) seeking dismissal of an Article 81 petition brought by the son. The motion for SJ was
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