MHL ARTICLE 81 - New York State Unified Court System

Estate of Domenick J. Carota, NYLJ, 2/26/02 (Surr. Ct., Westchester Cty. 2002)
Guardian may exercise right of election for IP under EPTL 5-1.1-A(C)(3)(E).
Matter of Burns (Salvo), 287 A.D.2d 862, 731 N.Y.S.2d 537 (3rd Dept., 2001)
Where guardian wants to make charitable gift on behalf of IP to entities that were not beneficiaries
of her estate, court reaffirms guardian’s power to use substituted judgment and effect such transfer
if, under the circumstances, a reasonable person in the IP’s position would have done so.
Matter of Shah, 95 N.Y.2d 148, 711 N.Y.S.2d 824, 733 NE2d 1093, (2000); affirming, 257
nd
A.D.2d 275; 694 N.Y.S.2d 82 (2 Dept., 1999)
Guardian (wife) allowed to transfer all of comatose IP husband’s assets to herself to render IP
Medicaid eligible and to maintain her support. Court makes it absolutely clear that a person should
normally have absolute right to do anything that he wants to do with his assets, including giving
those assets away to someone else “for any reason or for no reason.” No agency of the government
has any right to complain about fact that middle class people confronted with desperate
circumstances choose voluntarily to inflict poverty upon themselves when it is government itself
which has established rule that poverty is prerequisite to receipt of government assistance in
defraying of medical expenses. If competent, reasonable individual in position of IP would be likely
to make such a transfer, under the same circumstances to insure that his care be paid by the State,
as opposed to his family, then guardian can do it for him.
rd
Matter of John "XX," 226 A.D.2d 79; 652 N.Y.S.2d 329 (3 Dept., 1996), lv. to app. denied, 89
N.Y.2d 814; 659 N.Y.S.2d 854 (1997)
Guardian properly transferred bulk of his assets to IP’s adult daughters within Medicaid guidelines,
in order to shield those assets from potential Medicaid lien for cost of nursing facility and other
medical services. IP was likely to require continued nursing home care, costs of which will exhaust
his assets, and it cannot be reasonably contended that competent, reasonable individual in his
position would not engage in estate and Medicaid planning proposed by guardian. Finally,
incapacitated person appears not to have manifested any intention inconsistent with proposed
transfer, and there can be no question that his daughters are natural and (as expressed in his will)
actual objects of his bounty.
Matter of Phlueger, 181 Misc.2d 294, 693 N.Y.S.2d 419 (Surr. Ct., NY Cty., 1998)
Re: Substituted judgment standard: where the IP has indicated views on the act for which the
approval is sought, or his desires are otherwise known, the court will approve act even if it is not
optimal choice so long as it is within parameters of reason. On the other hand where there is no
information as to the IP’s intent for the act, the court is more likely to restrict approval to acts within
the range of reasonable choices that would optimize the person’s situation.
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