MHL ARTICLE 81 - New York State Unified Court System

made on the theory that the AIP made her own prior arrangements for the management of her care
when she was competent by appointing the POA and HCP to make all decisions for her thus
obviating the need for a guardian. Court denied motion for SJ finds that issues of fact exist because
(1) there were issues as to the validity of the signature on the HCP; (2) neither the HCP or POA,
either alone or combined, authorized the agent carte blanche to select place of abode for the AIP;
even where the AIP had checked Box “O” on the POA form indicating “all other matters” (3) the son
and daughter, as co- POA’s, could not agree as to the place of abode and (4) The extent of the AIP’s
actual limitations was not known. The court states:
The fact that a health care proxy exists does not, in itself, always obviate the need for
a guardianship. Public Health Law 2992. The scope of Article 81 of Mental Hygiene
Law and Article 29-c of the Public Health Law do not overlap with respect to making
decisions regarding the social environment and other such aspects of the life of the
incapacitated person and choosing her place of abode....
nd
In the Matter of Isadora R., 5 A.D.3d 494; 773 N.Y.S.2d 96 (2 Dept., 2004)
The nonparty, attorney-in-fact and health care proxy for AIP appealed from an order and judgment
appointing a guardian which also vacated the POA and HCP. Appellate Division reverses finding
that the evidence established that the AIP had “effectuated a plan for the management of her affairs
and possessed sufficient resources to protect her well being” and that there was no evidence that the
appellant, a longtime friend of the AIP’s and the AIP’s chosen attorney-in-fact and health care proxy
had mishandled the AIP’s property or that the AIP’s health and well-being were harmed by any
actions taken by the appellant sufficient to justify revoking the power of attorney and health care
proxy in favor of a court-appointed guardian.
nd
Matter of Nora McL.C., 308 A.D.2d 445, 764 N.Y.S.2d 128 (2 Dept., 2003)
App. Div. affirms trial court’s appointment of third party guardian of the person and property where
niece who held POA and HCP evidenced “self dealing” by transferring AIP’s stock and other assets
into her own name.
Article: “Beware the Abuses of Powers of Attorney” by Leona Beane -NYLJ Aug 23, 2002
In the Matter of Rose S. (Anonymous), Martin G. S. (Anonymous), etc., appellant-respondent;
nd
Ellyn J. S. (Anonymous), et al., respondents-appellants., 741 N.Y.S.2d 84 (2 Dept., 2002)
Supreme Court hearing Article 81 petition found to have erred in declaring that a health care proxy
executed by AIP was valid. Appellate Division, Second Department, reasons that although every
adult is presumed competent to appoint a health care agent and thus the burden of proving mental
incompetence is generally upon the party asserting it, where there is medical evidence of mental
illness or a mental defect, such as Alzheimer’s disease, the burden shifts to the opposing party to
prove by clear and convincing evidence that the person executing the document in question
18