MHL ARTICLE 81 - New York State Unified Court System

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In the Matter of Joseph S., 25 A.D.3d 804; 808 N.Y.S.2d 426 (2 Dept. 2006)
Although AIP had not been diagnosed as suffering from any particular psychiatric diagnosis and was
sometimes alert and lucid, the Appellate Division upheld a finding of incapacity because he was “at
best only somewhat functional and coherent”. Court recites that AIP was of advanced age, extremely
hard of hearing, suffering from short term memory loss and severe arthritis, he has been hospitalized
several times in two years, and he could no longer care for himself alone or his property as relevant
findings. Court would not consider the AIP’s home health aide, whom he married, as a viable
alternative resource, citing as relevant that she was 43 years his junior, that prior to the marriage she
had isolated him from his family and friends, and that the trail courts annulment of the marriage was
being upheld.
In the Matter of The Application of Joseph Meisels (Grand Rebbi Moses Teitelbaum); 10
Misc.3d 659; 807 N.Y.S. 2d 268 (Sup. Ct. Kings Cty., 2005)(Leventhal, J.)
An Article 81 petition was brought for guardianship over the Grand Rabbi of The Satmar sect. He
had previously appointed one of his sons and his longtime personal secretary as HCP and POA. The
petition alleged that the Rabbi was disoriented, in need of round the clock assistance and was in poor
health but there was no allegation that he was not receiving the care he needed. The court allowed
the petitioner to submit additional affirmations and considered them as if the pleading had been
amended to include them. In fact, the Court visited the Rabbi at home and noted that he has a butler
who sleeps in his room, an intercom system linked to his room, a personal secretary, a personal
paramedic, a chauffeur and cook and other staff to meet his needs. The judge spoke to the Rabbi
who told him that he was satisfied with his care. Since there were no allegations that he was at risk
due to his limitations, and since the facts clearly established that he was in fact not at risk and that
all his need were met, the court concluded that there was no showing of a need to commence a
guardianship proceeding and dismissed the petition.
Matter of J.G., NYLJ, August 19, 2005 (Sup. Ct., Bronx Cty.) (Hunter, J.)
Where there was no testimony that the AIP was incapacitated or in anyway lacked functional skills,
but AIP consented to the guardianship because he wanted assistance with his upcoming eviction and
his finances, Court, citing the deprivation of liberty associated with a guardianship directed the
petitioner to instead contact Adult Protective Services to assist him. See, also, Article - “Helping
the Elderly Incapacitated Client,” NYLJ, August 19, 2005, p.2., Vol 234.
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Matter of Margaret K., 17 A.D.3d 466; 729 N.Y.S. 2d 350 (2 Dept., 2005)
Appellate Division uphold order granting guardianship. The petitioner established by clear and
convincing evidence that the appellant, Margaret K., is likely to suffer harm because she is unable
to provide for her personal needs and property management, or to adequately understand and
appreciate the nature and consequences of such inability. Accordingly, the Supreme Court properly
appointed a guardian for the appellant's personal needs and property management.
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