MHL ARTICLE 81 - New York State Unified Court System

approve it, the divorce could not be finalized because to do so would have had the effect of
retroactively expanding the authority of the guardian.
Matter of Oringer, 8 Misc.3d 746; 2005 N.Y. Misc. LEXIS 1036 (Sup Ct , NY Cty 2005)
(Lucindo-Suarez, J.)
Where Order appointing guardian did not specifically authorize guardian to exercise right of election
under EPTL 5-1.1-A, guardian could not do so absent a subsequent order of the court authorizing
same since, under MHL 81.29 all rights and powers are specifically retained by IP unless
specifically authorized by the court .
nd
Matter of Solomon T R., 6 A.D.3d 449; 774 N.Y.S.2d 360; (2 Dept. 2004)
Guardians, who had power to make decisions about APS social environment, sought and obtained
order restraining certain individuals from harassing or visiting the AIP. These individuals appealed.
Appellate Division, inter alia, reverses the order finding that on the facts there was no proof that
these individuals were harassing the AIP or that they should be restricted from visiting him.
Although the decision does not provide any details, the Court does quote MHL 81.22[a][2] and
seems to suggest that restricting their visits might be inconsistent with the AIP’s wishes and
preferences and that in making the decision to restrain the visitors, the guardian may not have kept
in mind these considerations.
Estate of Levine, 196 AD.2d 654, NYLJ, 9/21/00, p. 27 (Surr. Ct., Bronx Cty.)(Surr. Holtzman,
J.)
Guardian may not have implicit authority to change AIP’s legal residency where order appointing
guardian does not specifically grant that power.
rd
Matter of Burns, 267 A.D.2d 755; 699 N.Y.S.2d 242 (3 Dept.)
Where guardian sought court approval to make charitable gifts from IP’s assets, notice was to be
given to IP’s presumptive distributees.
Matter of Heagney, NYLJ, 4/24/00, p. 37, col. 5 (Sup. Ct., Westchester Cty.)(Friedman,
JHO)
In guardian’s petition for final accounting, County of Rockland contested, inter alia, failure of
guardian to properly and expeditiously apply to Medicaid so that County could be repaid money
owed for services. Court found that guardian was not given power" to apply for government and
private benefits on behalf of the person," and thus, did not violate fiduciary duties towards AIP.
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