MHL ARTICLE 81 - New York State Unified Court System

petitioner's inability to locate and serve AIP. Court concludes that remedy may be found by
combining Art. 81 proceeding with a sua sponte habeas corpus proceeding in which party secreting
AIP is directed to produce AIP before Court, in order to allow an inquiry as to whether she is being
unlawfully restrained, detained or confined.
H. MHL Art 79 (Guardianship for Veterans)
Matter of Zhou Ping Li, 2005 N.Y. Misc. LEXIS 3592; 234 N.Y.L.J. 85 (Sup. Ct. Kings Cty.,
2005) (Pesce, J.)
A guardian for an IP seeks court approval for a settlement entered into with DSS for moneys owed
to DSS for substantial sums it provided for the IP’s care. The IP is a recipient of substantial VA
benefits. The DVA moves to intervene and to oppose the settlement. Some aspects of the proposed
settlement involve the disposition of both accumulated and future VA benefits ; other aspects of the
settlement involve transfer of real property acquired without using VA benefits. The Court finds
that under MHL §79.39(a) the DVA is a proper party in interest with respect to the terms of the
settlement that involve the disposition of VA benefits only. The Court also finds that no part of
MHL Article 79 prohibits lawful Medicaid and estate planning conducted on behalf of a disabled
veteran and that therefore there was no prohibition against the requested transfers merely because
the IP is a recipient of VA benefits. After analyzing the legitimacy of each of the proposed transfers,
the Court approved the proposed settlement which involved, among other things the placement of
the IP’s income, including his VA benefits into a supplemental needs trust.
In re Guardianship (Formerly Committee) for the benefit of W.J., 9 Misc.3d 657; 802 N.Y.S.2d
897 (Sup.Ct., Rensselaer County 2005) (Ceresia, J.)
A corporate committee was appointed in 1961 for a ward who was receiving VA benefits. In 2005
it moved to be compensated under MHL Art 81 claiming that the work it was doing was in the nature
of trustee work and that it should therefore be compensated under SCPA 2309, as set forth in Art
81. The VA and counsel for the ward opposed, claiming that the fiduciary appointment was made
pursuant to MHL Art 79 governing veterans and not Art 78 which was repealed in 1992 when Art
81 was enacted in its place. The corporate committee argues in the alternative that if it is to be
compensated under Art 79, that it be compensated for “extraordinary services”. The court finds that:
(1) under the 2004 amendments, Art 81 no longer makes reference to SCPA 2809 as a method for
calculating guardians’ compensation and that each compensation determination is based upon the
specific facts of each case; (2) that the original proceeding was commenced by the VA and under
the Civil Practice Act and that CPA §§ 1384-k which governed compensation at that time is now part
of MHL Art 79; (3) that MHL Art 79 is still in effect and supercedes other guardianship sections
that may be inconsistent and that therefore, this guardianship is governed by MHL Art 79. The Court
further found that “the long duration of the guardianship and/or the size of the estate, in and of
themselves, were not “extraordinary service” nor was the fact that the services involved “on-going
property management responsibilities [in a] highly regulated financial industry [with] a high standard
of professional conduct and significant reporting requirements.”
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