MHL ARTICLE 81 - New York State Unified Court System

months the mother continued to deny the father access, failed and refused to file court ordered
reports concerning her son, and, in fact, was held in contempt and fined for each visit she refused
to allow. She also refused to cooperate with a court appointed parent coordinator. She continued
to refuse visits and pay fines. She also had no telephone service at home and did not respond to
efforts by the parent coordinator to contact her, which she attributed to a lack of money to pay phone
bills. The father eventually moved to have her removed as guardian and to be appointed as successor
guardian in her stead. Despite the court noting her loving and supportive attention to her son, the
court nevertheless removed her as guardian and transferred guardianship to the father, noting that
the father did not pose a threat to his son, that it was in the son’s best interest to have a relationship
with his father, that the father was willing to allow liberal contact between the mother and son, and,
that the court could no longer tolerate the mother’s defiance of court orders.
Matter of John D., 9/15/09 NYLJ 40 (col 1) (Sup. Ct. Cortland Cty.)(Peckham, J.)
Upon finding that the AIP was not incapacitated and not in need of a guardian at the time of the court
hearing, the court ordered, over the AIP’s objection, an MHL 81.16(b) protective for an individual
with substantial assets, who, during a period of mania, went on an irrational spending spree.
Although he was stable at the time of the Court proceeding, there was a 30% chance of his relapse
that could result in a waste of his assets. These assets were the subject of claim by his wife in a
divorce proceeding for equitable distribution. The court further issued an order restraining financial
institutions from transferring or releasing funds on deposit to the AIP or to a 3rd party without prior
approval of the court appointed monitor. See, Article: NYLJ, 1/25/10 - Trusts and Estates "John
D.: Appointing Monitor Not in Keeping With Legislative Intent of Article 81" -- arguing that this
decision is: "not in keeping with the legislative intent of Article 81 of the Mental Hygiene Law, and
is the first step onto the slippery slope of invasion of the personal property rights of an Alleged
Incapacitated Person wrought solely in an attempt to assist in the enforcement of a distributive award
granted to an ex-spouse."
Acito v Acito, 23 Misc.3d 832; 874 N.Y.S.2d 367 (Sup. Ct. Bronx Cty. 2009) (Gesmer, J.)
Where an order appointing a guardian provided, among other things, that the guardian was
empowered to prosecute a divorce proceeding on behalf of the IP and settle it subject to the further
approval of the court that had ordered the guardianship, and the IP died after the matrimonial court
had so ordered the divorce settlement but before the court that had issued the guardianship could
approve it, the divorce could not be finalized because to do so would have had the effect of
retroactively expanding the authority of the guardian.
Matter of Elisabeth S.Z., 56 AD3d 792; 871 N.Y.S.2d 165 (2nd Dept 2008)
Guardian moved against the IP’s husband for tax free financial support for the IP. The trial court
granted the motion without conducting an evidentiary hearing to ascertain her actual support needs
or the impact of the support payments on her eligibility for Medicaid. Further, the order contained
no findings of fact or conclusions of law nor did it provide any explanation of its decision to award
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