MHL ARTICLE 81 - New York State Unified Court System

Matter of AT, 16 Misc3d 974; 842 N.Y. S.2d 687 (Sup Ct . Nassau Cty., 2007) (O’Connell, J.)
An elderly and infirm man petitioned for guardianship over his female companion of many years
who contributed substantially to his support and with whom he lived. Although he was not
appointed, an independent guardian was. This man moved to reargue and the guardian cross moved
to have him evicted from the premises that he had shared with the IP who was now in a nursing
home out of state. The man sought to have the guardian’s powers modified to allow the guardian
to give him permission to continue living in the home and to gift funds to him to provide for his
support. The court stated that before approving any gifts or support the court must be satisfied by
clear and convincing evidence that a competent reasonable person in the position of the IP would
be likely to perform the act or acts under the same circumstances under the doctrine of substituted
judgement codified in MHL 81.21 . The court also pointed out that this request should be made to
the guardian and not the court directly and therefore, gave the applicant additional time to submit
whatever he deemed appropriate to satisfy the statutory requirement by clear and convincing
evidence and the guardian time to respond.
Matter of Michael Alfonso, NYLJ, 6/26/03, p. 28, col. 6 (Surr. Ct., West. Cty.)
Parents were permitted to use funds in SNT for profoundly disabled child to purchase family home.
After stating that purchase of home with SNT funds is presumptively improper and subject to
stringent review by court, court authorizes purchase on conditions that purchase price is fair, house
is appropriate to meet child’s needs, title to be 100% in child’s name, carrying charges to be paid by
parents except for major repairs, parents may not sell or alienate property without prior approval of
court, money will be returned to SNT if sale not concluded, and named bank to be co-trustee.
nd
Matter of William L., 253 A.D.2d 432; 676 N.Y.S.2d 625 (2 Dept., 1998)
Petitioner denied reimbursement for expenditures he made on behalf of his father (AIP) from joint
bank account created and funded by his mother in both his and her names. Petitioner claims that at
least some money in account was his. Record indicated that assets used to fund account had been
jointly owned by petitioner's mother and father.
Matter of Le Bovici (Menzel), NYLJ, 2/26/97, p.25, col. 3 (Sup. Ct., Queens Cty.)(Kassoff, J.)
Court denied guardian’s motion to vacate and discharge mortgage on grounds of incapacity of elderly
woman at time of transaction in 1994, approximately one year before guardian was appointed in
1995. Notary and title closer testified that she was responsive and coherent at closing with no
“unusual” behavior. Despite other testimony that she was incapacitated as her mental status had been
deteriorating since 1993, court denied motion as the title held by a bona fide purchaser for value (the
bank), cannot be disturbed if there was no possible notice of the incompetency. As law presumes the
competency of the individual, without more substantial evidence about the AIP’s mental state at the
time of the transaction itself, the “mere opinion” of a doctor about how long incapacity existed is
insufficient to disturb the mortgage.
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