MHL ARTICLE 81 - New York State Unified Court System

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Matter of Shirley I. Nimon, 15 A.D.3d 978; 789 N.Y.S.2d 596 (4 Dept., 2005)
During original guardianship proceeding, the trial court appointed both daughters as guardians and
directed that the IP live in nursing home near each daughter for half the year. The Appellate Court
here overrules trial court’s decision, labeling it as an improvident exercise of but not an abuse of
discretion, finding that for an Alzheimer’s patient such as this IP, relocating every 6 months is
disorienting and not in the IP’s best interests.
Matter of Dennis Diaz, NYLJ, 7/6/04, p. 21 (Sup. Ct., Queens Cty.)(Taylor, J.)
After an Article 81 hearing, a disabled man was found to be in need of a guardian of the person and
property. He was found, among other things, to have the functional level of approximately a 5 th
grader and specifically to be in need of assistance in handling his own finances. Before a guardian
could be bonded and qualified, he retained counsel and entered into a contract of sale to purchase
a tavern with his own funds. Under pre-Art 81 law, contracts entered into by persons adjudicated
incompetent and who have committees or conservators are presumptively void. Contracts with
persons who do not have committees or conservators but are of unsound mind and unable to
appreciate the consequences of their own actions were considered voidable. Article 81 does not
result in a finding of incompetence but rather only findings of specific functional limitations and
guardianship powers tailored to be the least restrictive form of intervention. This AIP was found to
lack the ability to handle his own finances so here, the Court does void and revoke the contract.
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Matter of Rosa B., 1 A.D.3d 355;767 N.Y.S. 2d 33 (2 Dept. 2003)
The Appellate Division re-emphasized that the rules of evidence apply in an Article 81 proceedings
but that a court, for good cause, may waive the rules in an uncontested proceeding. Specifically, the
physician patient privilege applies and the AIP does not waive it by contesting the application for
guardianship if he does not specifically put his medical condition at issue. In his case, even though
it was a jury trial, the court found that the violation of the privilege was harmless error since there
was sufficient independent evidence of functional incapacity based upon non-medical evidence.
In the Matter of Joseph A. (Anonymous) a/k/a Joseph B.A., 304 A.D.2d 660, 757 N.Y.S.2d
nd 481 (2 Dept. 2003)
Appellate Division reverses order on the law without costs, denied petition and dismisses
proceedings upon finding that “petitioner failed to prove by clear and convincing evidence that the
appellant was unable to provide for the management of his property and did not appreciate the
consequences of such inability.” (no facts discussed in opinion.)
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Matter of David C., 742 N.Y.S.2d 336; 294 A.D.2d 433 (2 Dept., 2002)
Appellate Division reverses order appointing guardian, holding that “a precarious housing situation
and meager financial resources do not, without more, constitute proof of incapacity such that a
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