MHL ARTICLE 81 - New York State Unified Court System

disagreement with her father’s choices regarding the management of his rental properties rather than
from any inability on his part to make choices.
Matter of Ella C., 34 Misc3d 1203A; 943 N.Y.S. 2d 791; 2011 N.Y. Misc. LEXIS 6167 (Sup.
Ct,. Kings Cty. 2011) (Barros, J.)
The AIP, an accomplished and well educated 72 year old woman who had raised 4 children, whose
recent behavior represented a marked departure from her general predisposition prior to an accident
that had resulted in several mini strokes, was found to be in need of a guardian of the person and
property based upon the following findings: (1) Her income producing real estate holdings had fallen
into serious utility and tax arrears, were uninsured and in a state of disrepair and were not producing
income. Stench was emanating from the apartments she was allowing one of her daughters to use
as a “cat sanctuary“ and her own apartment was cluttered with objects and debris. Repairs that had
been started had been inexplicably abandoned. She had no comprehensive understanding of her
assets, the extent of her estate, and most significantly no insight into her inability to manage her
financial affairs. She lacked appreciation of the negative consequences of her susceptibility, to witlosing
all the assets she and her husband worked a lifetime to amass; (2) she was extremely
susceptible to undue influence and had elevated various people into positions of trust whom she
allowed to abuse her trust and steal her assets and, in haste and without the benefit of counsel, she
issued decision-making powers to a daughter whose own judgement was questionable and who
turned her mother against her other siblings and (3) she disinherited and filed family offense
petitions against her previously trusted children whom she summarily excluded from her life. The
court noted that had the AIP’s property interests been simpler, a guardian might never have been
needed and a less restrictive form of intervention might have sufficed but that her situation was
complicated by holding two multiple dwellings in New York City, navigating the maintenance of
these buildings, structuring payment schedules for utility and tax arrears, credit accounts, a pension,
and proceeds from a substantial wrongful death action for her husband.
Matter of Anthony Rose, 26 Misc. 3d 1213A; 907 N.Y.S. 2d 104 (Sup.Ct. Dutchess Cty 2010)
(Pagones, J.)
Upon motion by counsel for AIP, petition was dismissed under CPLR 3211(a) (7) because, although
the petition made out a prima facia case that the AIP was incapacitated, on its face the petition also
established that he had a valid Power of Attorney and Health Care Proxy that had not been revoked
and the agents he had appointed thereunder possessed sufficient authority to meet his needs.
Application of Hodges, 1/14/2010, NYLJ 35 (col.4) (Surr. Ct. NY Cty)(Surr Webber)
Application under Article 81 for guardianship was resolved by creation of SNT to receive and mange
an inheritance for the AIPS brother in lieu of guardianship. Although the Surrogate did not explain
its decision in terms of least restrictive alternative or alternative resources, it is a good example of
a creative solution that conforms to both concepts.
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