MHL ARTICLE 81 - New York State Unified Court System

transferred to a facility eligible for medicaid funding. The parties did not dispute that this
application for medicaid planning met the several requirements of MHL § 81.21, or that retroactive
effect may be given to the date of application but the County disputed the request of petitioner to
make the transfer retroactive tot he date the AIP went into facility. Court finds that the petitioner
failed to make a timely transfer or request at that time either under her power of attorney, or her
guardianship authority and that the premise behind MHL §81.21 in approving medicaid transfers was
to give the guardian the same rights that the incompetent would have had if not incompetent, but no
greater.
Matter of Oringer, 8 Misc.3d 746; 799 N.Y.S.2d 391 (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.
In the Matter of the Application of Mark Forrester for the Appointment of a Guardian for the
Person And Property of Carl Forrester , 1 Misc.3d 911A; 781 N.Y.S.2d 624 (Sup. Ct., St.
Lawrence Cty. 2004) (Demarest, J.).
Where petitioners, the AIP’s niece and nephew who had little prior contact with the AIP, sought be
named co-guardians and to engage in Medicaid planning that would result in the transfer of the AIP’s
assets to themselves, Court approves the appointment of them as guardians but denies the application
to do Medicaid planning. Court reasons that although Medicaid planning is a legitimate function of
a guardian, (a) the petitioners were not the AIP’s dependants, (b) there was no clear and convincing
evidence that they were the natural objects of the AIP’s bounty, (c) the AIP had not expressed any
prior donative intent toward his niece and nephew through a pattern of past giving and (d) the AIP
would not benefit from the transfers other than to become prematurely Medicaid eligible. Court
holds that it will not read into the guardian’s power to use substituted judgement a presumption that
people would rather their property go to relatives rather than be put to use for their own care, even
if it means that their property will go to the government.
Matter of McNally (Williams), 194 Misc.2d 793; 755 N.Y.S.2d 818; (Sup. Ct., Suff. Cty. 2003),
nd
aff’d 4 AD2d 432; 771 N.Y.S. 356 (2 Dept., 2004)
“..neither [the court] nor the guardian should be empowered to substitute their judgment for
that of a person for whom a guardian has been appointed merely because they believe that the
decision of such person is not the best one. This is not the case here. Medical testimony establishes
that [the AIP] suffers from dementia. Her expressed preferences is not only undesirable, it is not
rationale and abundantly contrary to her best interests.”
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