MHL ARTICLE 81 - New York State Unified Court System

Estate of Paul M. Schuller, NYLJ, 11/3/04, p.31 (Surr Czygier) Surr Ct. Suff. Cty.)
Petitioner, a physically disabled man who was mentally competent to handle his own affairs,
petitions to establish self settled SNT. Court grants petition, citing Matter of Gillette.
Matter of Cusack, NYLJ, 10/29/03 (Surr. Czygier)
Petitioner, a physically disabled woman who was mentally competent to handle her own affairs,
petitions to establish self settled SNT. Court grants petition citing Matter of Gillette)
Matter of Gillette, NYLJ, 4/4/03, p. 23, col. 3 (Broome County, Surr. Peckham)
Disabled person under 65 who has no parents, grandparents or need for guardian sets up his own
SNT w/o court intervention. SSA refuses to recognize the trust as an OBRA qualifying trust and
therefore counts the resources in the trust when determining eligibility. Disabled person petitions
the court to recognize the trust and set it up nunc pro tunc as of the date it was first funded. Court
holds that it cannot do it because it can not retroactively establish something that was not legitimate
in the first instance. Therefore, disabled person petitions the court to create a new trust. “HE DOES
NOT SIGN OR FUND IT BEFORE SUBMISSION TO THE COURT” Court notes, “In this way
the expense of a guardianship proceeding can be avoided for a person who is disabled, but not
otherwise in need of a guardian”. See, excellent article discussing how to establish first party
SNT in light of this case at NYLJ, 6/2/03 p.1 col. 1. See, Newsday 9/3/03 p. A23 “allowing a
trust without a guardian” by Robin Topping (discussing Nassau County case before Surr.
Riordan following Gillette)
f. Proper Court
Matter of the Establishment of a Supplemental Needs Trust for the Benefit of Michael M,
4/5/2010 N.Y.L.J. 31, (col. 6) (Surr. Ct. Bronx Cty.) (Surr. Holtzman)
An Article 81 guardian of the person and property sought leave to create an SNT for the benefit of
her ward and to fund the SNT with her ward's distributable share of his mother's estate as well as
with funds currently held in the Article 81 guardianship account. Under the circumstances of this
case, including that a portion of the funds were subject to the Article 81 guardianship proceeding,
and it appeared that the Supreme Court had reserved the right to approve any compensation to be
paid for legal services in any matter, it is not clear that the appointing court granted the petitioner
authority to commence the SNT proceeding in the Surrogate court. Accordingly, the Surrogate
denied the application without prejudice unless, within 90 days of the date of its decision and order,
the petitioner obtained and presented an order of the appointing court indicating that she has the
authority to make the instant application to the Surrogate Court.
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