COLLECTED CASES (Current through June 29, 2018)

1 _____MHL ARTICLE 81and related matters_____COLLECTED CASES (Current through December 10, 2018) Mental Hygiene Legal ServiceSecond Judicial DepartmentMichael D. Neville, DirectorFelicia B. Rosen, Principal AttorneyTABLE OF BETWEEN ARTICLE 81 & OTHER PROVISIONS OF MHL Article 17-A and SCPA 17 (and other matters involving minors).. ad (i) of (ii)Does not have authority to consent to settlement of behalf of (iii)Does have authority to consent to settlement on behalf of of attorney/health care agents/trustees .. capacity/Revocation of MHL Art 79 (Guardianship for Veterans) .. Outpatient Treatment (Kendra s Law).. to CPLR Art. 12 Infant Compromise.

2 LIMITATIONS/ALTERNATIVERESOURCES/BEST INTERESTS OF IP .. OF GUARDIANSHIP ON RIGHTS OF to Nursing Home/Change of to psychiatric hospitalization and questionable marriages and other of AIP s funds .. s and Guardian s right to sue or be (i)Effect of Guardianship on Running of Filing (ii) on Guardian s to do Estate and Medicaid (i)Substituted judgment ..74(ii)Medicaid Planning trusts: Supplemental Needs/Pooled that can be placed into (i)Personal injury awards/own (ii) (iii)Income and to and Involvement of local DSS .. of SNT/Proper petitions and petitioners ..98f. Proper Court ..99g. Reformation of Trusts to SNTs ..101h. Trustee Compensation/Legal Fees.

3 103i. Court supervision of trusts .. of trust .. Terms of (i)Attorneys Fees Subject to Review by Court ..106(ii)Amendment of Trust Only Upon Court (iii) Reversal of Gifts and Planning (iv)Dispensing with Annual Accounting ..108(v)Accounting Required Under Article 81 (vi)Terms Against the Best Interest of the Beneficiary and/orAgainst Public (vii)Requirement of to of as Alternative to of May Create a previously executed legal instruments including Wills, Conveyances, Contracts, Health Care Proxies and Powers of Attorney .. may waive professional privileges on behalf of 's power to protect ward's restrictive alternative/Deprivation of liberty Matter of Heidi B.

4 (Pasternack), _AD3D_, 2018 App. Div. LEXIS 6891 ( , 2018) iiiThe Appellate Division modified a judgment which appointed a guardian and granted theguardian broad powers by deleting the powers that were not recommended in the courtevaluator's report, noting that the broad grant of powers was inconsistent with thestatutory requirement that the guardian be granted "only those powers which arenecessary to provide for personal needs and/or property management of the incapacitatedperson in such a manner as appropriate to the individual and which shall constitute theleast restrictive form of intervention.".. medical/end of life (i)Pre-Family Health Care Decisions (ii)Family Health Care Decisions Preferences of Person Facing Burden of Proof/Clear and Convincing Evidence.

5 As Incapacitated Change of IP s to Power to control IP's social (i)Preference for Family Members Unless Unfit or Conflict ..145iv(ii)Public agencies ..156(iii)Out of State/Foreign (iv)Counsel or court evaluator as (v)Creditors as (vi)Conflict of Interest, (vii) Guardians and Provisional Arrangements/Single and Consent to Appointment of of fiduciary duty/ Defacto a Power is a Personal or Property and Immunity of and petitioners .. and Returns of Petitions and Orders to Show (i)Proper and timely (ii)Notice of of Constitutionality and statutory is entitled to the Petition?..208(iii)Withdrawal of and (i)Uniform Adult Guardianship and Protective ProceedingsJurisdiction Act (MHL Art 83) with the Guardianship (i)Appointment and (ii)Counsel and other for payment of counsel fees.

6 224(i)AIP s (ii) (iii)Payment of fees pursuant to County Law (iv)Public (v)Non-petitioning Nursing (vi)Non-party intervenor ..239(vii) The bar in general .. whom fees paid ..240(i)Retained counsel ..240vi(ii)Counsel for Cross - petitioners ..242(iii)Counsel for Public agencies and (iv)Counsel for guardians/conservators ..243(v)Counsel for Guardian s surety ..244(vi) Counsel for non - party .. of fee Court to award fees Surrogate s or set by other (i)Foreign courts not (ii)Other New York (i) (ii) (iii) of Fee (iv) Report as (i)Hearing of AIP at hearing / Bedside Findings of Foreign (ii)Medical Testimony not (iii)Applicability of rules of (iv)Clear and convincing evidence.

7 275(v)Confidentiality Worker - Client to DSS of Courtroom/Court amendment ..282f. Information Proceeding (vi)Jury (vii)Court's consideration of best interest and wishes of (viii)Burden of (ix)Appointment of Independent Psychiatric, psychological and (x) (xi) (xii)Consent to Appointment of (i)Frivolous (ii) of of Rent or hospital charges during pendency of Art. 81 proceeding - stayof evictions .. 36 Secondary (i) / Non -parties ..315(i) Court Evaluator ..315(ii)Individuals entitled to notice under MHL (e).. Reports/Court to Gain and BETWEEN ARTICLE 81 & OTHER PROVISIONS OF LAWA. MHL Article 78 Will of Josephine Brucato, 7/17/09 28, (col.)

8 3) (Surr Ct. Kings Cty.)(Surr. Johnson) SCPA 1402 has not been amended to reflect the fact that committees and conservators have beenreplaced by guardians under Article 81 of the Mental Hygiene Law. Nonetheless, a guardian of alegatee has standing to petition to probate a will. Matter of Dennis Diaz, NYLJ, 7/6/04, p. 21 (Sup. Ct, Queens Cty.)(Taylor, J.)After an Article 81 hearing, a disabled man was found to be in need of a guardian of the person andproperty. He was found, among other things, to have the functional level of approximately a 5thgrader and specifically to be in need of assistance in handling his own finances. Before a guardiancould be bonded and qualified, he retained counsel and entered into a contract of sale to purchasea tavern with his own funds.

9 Under pre-Art 81 law, contracts entered into by persons adjudicatedincompetent and who have committees or conservators are presumptively void. Contracts withpersons who do not have committees or conservators but are of unsound mind and unable toappreciate the consequences of their own actions were considered voidable. Article 81 does notresult in a finding of incompetence but rather only findings of specific functional limitations andguardianship powers tailored to be the least restrictive form of intervention. This AIP was found tolack the ability to handle his own finances so here, the Court does void and revoke the of , NYLJ, 10/31/01, (Sup.)

10 Ct., Suff. Cty.) (Berler, J.)Although CPLR 1201 refers to service of legal papers on incompetents and conservatees and itshould also be construed to include incapacitated persons for whom Art. 81 guardians have of Stephen D., 190 Misc2d 760, 739 913 (Surr. Ct., Bronx Cty. 2000)(Hotzman, Surr.)Where MHL Art 77 conservator dies after date of repeal of MHL , court can fill the vacancyby appointing an Art. 81 guardian and it is at the discretion of the court whether to hold a hearingunder MHL of Lois "F" (Ruth "F"), 209 856; 618 920 (3d Dept., 1994)1 Where committee was properly appointed under MHL Art. 78, appointment survived repeal ofArticle 78 and enactment of MHL Article 81.