MHL ARTICLE 81 - New York State Unified Court System

cart, her hygiene was described as adequate and she took sponge baths instead of tub-baths or
showers because her tub was in need of repairs. When she refused to allow the landlord into her
apartment to make repairs to her floorboards, bathroom ceiling and tub that she did not want to be,
in her estimation, overcharged for, the landlord reported her to APS which determined that she was
in need of protective services. The court found that the only functional limitation established by the
petitioner at the hearing was that the AIP had an unsteady gait and that rather than establishing that
the AIP lacked appreciation of the nature and consequences of her limitations petitioner had
actually established that the AIP had accommodated to her limitations. The court declined to find
the required risk in the petitioner’s “speculation” about “hypothetical future .... events “ including
that the AIP might trip on the floor boards that she has successfully been navigating for over a year
or that she might be the subject of an eviction proceeding and fall through the cracks of the system,
due to potential negligence of the petitioner.
Matter of Khazaneh, 15 Misc. 3d 515; 834 N.Y.S. 2d 616 (Surr. Ct., NY Cty., 2006) (Surr.
Glen)
In this probate proceeding, the Surrogate was called upon to examine whether a testator lacked
testamentary capacity because he did not know the exact value of his holdings. The Surrogate
looked to Article 81 and focused on its emphasis on “task specific functional ability,” and found that
the testator, who clearly had the cognitive ability, possessed sufficient capacity to make his Will. In
so finding, the Surrogate made the following insightful comment:
“ Throughout most of our legal history, judges and litigants have utilized unitary concepts like
‘competent’ or ‘incompetent,’ ‘sane’ or ‘insane.’ Notwithstanding this apparently simple
framework, the genius of the common law presaged a more "functional" notion of capacity as legal
standards or tests for capacity evolved differently in different areas of law. (fn omitted) It is only
relatively recently, however, that the law has explicitly embraced the more nuanced view of modern
psychology and psychiatry which recognizes that an individual may be perfectly "competent" in one
area, and "incompetent" in another. Our legislature adopted this functional approach to determining
capacity when it enacted Article 81 of the Mental Hygiene Law in the early 1990's.”
Matter of E.H., 13 Misc.3d 1233A; 831 N.Y.S.2d 352(Sup.Ct., Bronx Cty., 2006) (Hunter, J.)
IP was found to be in need of personal and property guardian where she: could perform most of her
activities of daily living but she needs prompting in order to do so, such as bathing daily; she often
refused to eat and her meals had to be brought to her hospital room because she refused to eat in the
dining hall; she was considered belligerent and angry and had been assaultive with the staff at the
hospital; she wanted to return to her apartment in the community, but refused any assistance
including devices to aide her with her hearing impairment; the hospital has made efforts to provide
care for her if she returns to her apartment in the community, such as Assisted Outpatient Treatment,
intensive care management, and APS, but all had declined to work with her because she was
non-compliant with her medications and because there was a lack of support in the community; and,
because she had been placed on financial management through APS after she faced eviction for
failure to pay her rent.
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