MHL ARTICLE 81 - New York State Unified Court System

primarily objected because it felt that the inheritance should have been disclosed in the Medicaid
application and that renunciation would make IP ineligible for Medicaid. However, court granted
power of renunciation, citing Social Services Law §366 for substituted judgment doctrine, also
adopted in Article 81, that institutionalized people do not became ineligible for those services solely
by the transfer of a resource if that transfer was made to or for the benefit of the patient’s spouse
because a spouse is the “natural object of his [partner’s] bounty.”
Matter of Furrer, NYLJ, 2/22/96, p. 35, col. 2 (Sup. Ct., Suffolk Cty., 1996) (Luciano, J.)
At time of petition, AIP was patient in State psychiatric facility. There were already probate
proceedings pending regarding estate of AIP’s late husband. The petitioner, hospital director, sought
to be appointed as Art. 81 guardian so that he could exercise surviving spouse’s right of election in
order to offset part of her outstanding debt to state for her care. AIP’s son also filed cross-petition
for Art. 81 guardianship. GAL had already been appointed in probate proceeding. Under the EPTL,
either guardian may exercise the right of election. Principal issue was whether the Article 81
guardian should be given preference over the Surrogate’s GAL in exercising right of election.
Finding the AIP clearly incapacitated, the court appointed her son as Art. 81 guardian for property
management but reserved right of election to Surrogate Court’s GAL because of Surrogate’s special
expertise. Judge Luciano emphasized that this special expertise is particularly important as there
may be questions under the EPTL law as to extent of the AIP’s right of election.
Matter of DiCeccho (Gerstein), 173 Misc.2d 692; 661 N.Y.S.2d 943 (Sup. Ct., Queens Cty.,
1997)
Court grants guardian, AIP’s son, power to transfer AIP's residence to himself, with life estate
retained for life of AIP and to transfer some assets to other family members, provided that sufficient
assets are retained to pay for AIP’s needs during period of Medicaid ineligibility.
Matter of Klapper, 1994 NY Misc. Lexis 700; 212 NYLJ 27 (Sup. Ct., Kings Cty.)(Leone,
J.)(We do not have this on file)
Guardians may be granted authority to make Medicaid planning transfers if the three requirements
of §81.21 were met as, to rule otherwise would deny incapacitated persons the opportunity to
preserve their assets that is available to those with capacity. Court held that IP’s intent to continue
to support her son’s family could be established by her pattern of past gifts.
Matter of Laudia, NYLJ, 7/2/96, p.25, col.1 (Sup. Ct., Nassau Cty.)(Rossetti, J.)
Court granted petition of wife, already co-guardian of her incapacitated husband, seeking approval
for transfer to her of his interest in their joint property and his individual property. Transfers were
intended to support her, as Medicaid’s minimum monthly needs allowance is insufficient. Transfers
are not required to continue his eligibility for Medicaid because he is already incapacitated. Having
applied the §81.21 test, the court concluded that the transfers are appropriate within the legislative
intent of providing for the IP’s dependents.
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