MHL ARTICLE 81 - New York State Unified Court System

possessed the requisite mental capacity. But see, Matter of Richard Rosenberg, NYLJ 8/18/03,
p. 25 (Surr. Riordan) interpreting and seemingly contradicting Rose S.
rd
Matter of Mary “J.”, 290 A.D.2d 847; 736 N.Y.S.2d 542 (3 Dept., 2001)
Appellate Division held that where hearing court found that AIP had executed durable power of
attorney and health care proxy while she suffered from dementia, it had properly voided the
instruments and appointed a guardian.
Matter of Ruby Slater, 305 A.D.2d 690; 759 N.Y.S.2d 885; appeal dismissed
Court vacates power of attorney and will where AIP, who was totally dependant upon home health
aides, executed these documents in favor of them and court finds that they were executed as a result
of undue influence. Subsequently, App. Div. dismissed appeal brought by the nominated executrix
because they said that the executrix is not aggrieved by the order and lacks standing to appeal.
Matter of Stein, 2001 NY Slip Op 40314U; 2001 N.Y. Misc. LEXIS 573 (Sup. Ct., NY Cty.
2001)
IP had both a guardian of the person and a Health Care agent. Each role was fulfilled by a different
person. The Health Care agent asserted that all decision involving the care of the elderly IP were
"health related", including whether the IP should live at home with a home health aide or surrender
her apartment and enter a nursing home. Court finds that such decision was within the realm of the
personal needs guardian and not the Health care agent, stating..."the guardian would be limited to
inconsequential actions and finding so would completely eviscerate the responsibility of the personal
needs guardian.
Matter of Lauro, 2001 NY Slip Op 40109U; 2001 N.Y. Misc. LEXIS 491 (Sup. Ct., Onondaga
Cty. 2001)(Wells, J.)
Court denies a petition for guardianship where there was already an SNT in existence serving the
same function stating: "Article 81 is designed to promote the use of the "least restrictive form of
intervention" (MHL 81.01) ...Guardianship.. no matter how noble, is still a deprivation of a person
rights."
nd
Matter of Albert S., 286 A.D.2d 684; 730 N.Y.S.2d 128 (2 Dept., 2001)
Where AIP had living will, durable Power of Attorney, and where trust fund was being established
for his benefit, Appellate Division found that there was no need for a guardian of the person or
property, which should be only a "last resort" when there are not other resources and that it was
particularly improper for Supreme Court to have appointed guardian of person with powers that
modified the terms of the "living will" by prohibiting the health care agents from acting under the
healthcare proxy to hasten his death by withholding life support.
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