MHL ARTICLE 81 - New York State Unified Court System

granting such power was reversed.
Matter of Grinker (Rose), 77 N.Y.2d 703; 570 N.Y.S.2d 448 (1991)(superceded by statute)
Mental illness without more held insufficient basis to appoint conservator with power to place person
in nursing home. To deny such personal liberty, there must also be clear and convincing evidence
that the illness has rendered person substantially impaired in ability to function and conduct own
affairs.
Matter of Application of St. Luke's Hospital Center (Marie H.),159 Misc.2d 932; 607 N.Y.S.2d
574 (Sup. Ct., NY Cty., 1993), modified and remanded, 215 A.D2.d 337; 627 N.Y.S.2d 357 (1 st
Dept., 1996), aff’d, 226 A.D.2d 106; 640 N.Y.S.2d 73, aff’d, 89 N.Y.2d 889, 653 N.Y.S.2d 257
(1996)
Valuable discussion of impact upon AIP’s liberty where guardian has power to transfer AIP to
nursing home or to make major medical or dental treatment decisions without AIP’s consent.
rd
Erlich v. Oxenhorn (Matter of Lula XX), 224 A.D.2d 742; 637 N.Y.S.2d 234 (3 Dept., 1996),
app. dismissed, 88 N.Y.2d 842; 644 N.Y.S.2d 683 (1996)
Guardian granted power to place AIP in nursing home where AIP was totally dependant, medically
frail, obese woman, unable to turn herself over without 2 aides or breathe without a ventilator and
tracheotomy, without family or responsible friend and for whom no home health agency would
continue to provide services.
st
Matter of Gambuti (Bowser), 242 A.D.2d 431; 662 N.Y.S.2d 757 (1 Dept., 1997)
Art. 81 does not permit special guardian to involuntarily commit AIP to nursing home. Protective
arrangements and transactions as contemplated by Art. 81 are far less intrusive and therefore
mechanism for appointment of special guardian under section 81.16 (b) inadequately addresses
liberty concerns of AIPs in context of involuntary commitment. Appointment of full guardian is
required for nursing home placement.
Contrast
rd
Matter of Grace PP, 245 A.D.2d 824; 666 N.Y.S.2d 793 (3 Dept., 1997), lv. to app.denied, 92
N.Y.2d 807; 678 N.Y.S.2d 593 (1998)
Temporary guardian was appointed, with specific limited powers of placement of the AIP in a
nursing home.
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