MHL ARTICLE 81 - New York State Unified Court System

Matter of Baird, 167 Misc.2d 526; 634 N.Y.S.2d 971 (Sup. Ct., Suffolk Cty., 1995)
Guardian may renounce inheritance on behalf of IP in order to retain IP’s Medicaid eligibility if IP
could have exercised same option had she not had guardian.
Matter of Beller (Maltzman), 1994 NY Misc. Lexis 698; 212 NYLJ 43 (Sup. Ct., Kings Cty.)
(Leone, J.)
In this excellent analysis of Medicaid planning under Article 81, the court ordered that guardian (son
of 81-year-old nursing home patient with degenerative dementia that is not expected to improve) be
permitted to transfer his mother’s assets to himself and her grandchildren for the purpose of making
her eligible for Medicaid that will pay for her nursing home stay. Court held that under §81.21,
patient; 1) lacks the mental capacity to perform this act and is not likely to regain it because of her
degenerative condition; 2) there was clear and convincing evidence that a competent person would
perform these acts (the transfers) under the same circumstances as no one would rationally choose
to “spend-down” all of their assets for nursing home care when the law provides an estate-preserving
alternative; 3) there was clear and convincing evidence, shown by her will, that the patient, when
she had capacity, did not manifest any intention inconsistent with the acts for which approval has
been sought.
Matter of Cooper (Daniels), 162 Misc.2d 840; 618 N.Y.S.2d 499 (Sup. Ct., Suffolk Cty., 1994)
Guardian could transfer IP’s property to daughter to make IP eligible for Medicaid. IP should be
permitted to have same options available to him with respect to transfers of his or her property that
are available to competent individuals. A reasonable individual in father's position would be likely
to make proposed transfer since such person would prefer that this property pass to his child rather
than serve as a source of payment for Medicaid and nursing home care bills where choice is
available.
Matter of Da Ronca (Da Ronca), 167 Misc.2d 140; 638 N.Y.S.2d 275 (Sup. Ct., Westchester
Cty., 1994)
Guardian who is wife may transfer the husband's assets to herself where Medicaid will pick up cost
of nursing home care and cost of nursing home care will deplete estate in less than seven years,
which will render his wife and son destitute. MHL 81.20 (a) (6) (iv) provides that guardian of the
property shall use property and financial resources and income available therefrom to maintain and
support IP, and to maintain and support those persons dependent upon IP." MHL 81.21 (a)(2)
provides that powers of a guardian may include the power to "provide support for persons dependent
upon [IP] for support, whether or not incapacitated person is legally obligated to provide that
support."
Matter of Driscoll, 162 Misc.2d 840; 618 N.Y.S.2d 499 (Sup. Ct., Suffolk Cty., 1993)
Petitioner, Article 81 guardian of his wife, sought power to renounce on her behalf a substantial
inheritance (the ½ share) that his wife was due to receive from their deceased son. Social Services
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