Mental Hygiene Law Article 81 I. Mental Hygiene Law Article 81

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Mental Hygiene Law Article 81

I. Mental Hygiene Law Article 81

a. Replaced Mental Hygiene Law Articles 77 and 78

In the Matter of Lois F., an Incapacitated Person. Ruth F., Appellant; Carol W. Wallace, as
County Commissioner of Social Services of the County of Greene, Respondent.
209 A.D.2d 856
Supreme Court, Appellate Division, Third Department, New York

(November 17, 1994)

CITE TITLE AS: Matter of Lois F.

Mercure, J. P.
Appeals (1) from an order and judgment of the County Court of Greene County (Lalor, J.),
entered August 25, 1993, which, in a proceeding pursuant to Mental Hygiene Law article 78,
appointed respondent as the guardian of Lois F., and (2) from an amended order and judgment of
said court, entered May 24, 1994, which, inter alia, denied petitioner's motion for increased
visitation and access to the medical reports of Lois F.

In July 1991, petitioner, age 77, lived with her then 46-year-old mentally retarded daughter, Lois
F. in the Town of Cairo, Greene County. At that time, respondent filed a petition pursuant*857 to
Mental Hygiene Law article 78 alleging that Lois was incompetent to manage herself or her
property and that a committee should be appointed. In October 1991, respondent, petitioner, Lois
and Elizabeth Wright, on behalf of Mental Hygiene Legal Service, entered into a stipulation
wherein they agreed that Lois was mentally retarded and unable to handle her own affairs and
that a committee should be appointed. It was also stipulated that respondent would act as
committee for Lois, that petitioner “is not to interfere with the present status or situation of
[Lois]”, and that petitioner may apply to become Lois' committee at any time provided that
petitioner submits proof of her “medical and mental health” to the court.

In March 1993, petitioner sought to vacate the stipulation and to be appointed Lois' committee
upon the ground of allegedly changed circumstances in that petitioner had been denied visitation
with Lois and that severe medical problems had arisen during the course of Lois' placement with
respondent. At petitioner's request, a hearing on the application was conducted on April 26, 1993
pursuant to the newly enacted Mental Hygiene Law article 81(see,L 1992, ch 698). At the
commencement of the hearing, County Court ruled that Lois may be removed from the
courtroom pursuant to respondent's motion. Petitioner did not object to the request; in fact, her
counsel stated, “My client most definitely would like her daughter removed from the
Courtroom.” Following the hearing, County Court determined that respondent should be Lois'
guardian and granted petitioner visitation at respondent's discretion. In March 1994, petitioner
sought increased visitation and disclosure of medical information regarding Lois. The order to
show cause did not request oral argument, and petitioner's counsel did not appear before County
Court on the return date of the motion. After hearing oral argument opposing the petition from
respondent's counsel and Wright, County Court denied the petition and an amended order and

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judgment was entered, reflecting that respondent has the power to consent to visitation as
proposed by the Office of Mental Retardation and Developmental Disabilities, in accord with
respondent's request. Petitioner appeals.

We reject petitioner's primary argument that County Court erred in relying upon the October
1991 stipulation that Lois was incapacitated. First, petitioner's assertions that the stipulation was
improper under the new provisions of the Mental Hygiene Law and that a new showing of Lois'
incapacity should have been made during the April 1993 hearing are *858 raised for the first
time on appeal. As such, they are not properly before this Court and are, therefore, unavailing
(see, 1 Newman, NY Appellate Practice § 4.18 [2]). Second, the law in effect during October
1991 did not prohibit stipulations with respect to incapacity, and the facts stipulated to by the
parties and the evidence presented gave County Court an ample basis upon which to make a
finding of incapacity pursuant to Mental Hygiene Law article 78 in any event. Third, in seeking
an order vacating the stipulation, petitioner did not allege in the petition or present facts at the
hearing that the stipulation was entered into under duress or that it was the product of fraud,
overreaching, collusion or mistake such that it should be vacated (see, Hallock v State of New
York, 64 NY2d 224). Fourth, County Court's adjudication of incapacity and appointment of a
committee having been properly made, it survived the repeal of Mental Hygiene Law article 78
and the enactment of Mental Hygiene Law article 81, effective April 1, 1993 (see, L 1993, ch 32,
§ 17). The Legislature plainly intended to give full force and effect to prior determinations.

Next, County Court properly denied petitioner's 1993 motion to remove respondent as committee
and to substitute petitioner as guardian. Although family members are generally preferred for
appointment in cases such as this (see, Matter of Steinberg, 121 AD2d 872;Matter of Weisman,
112 AD2d 871;Matter of Starrett, 53 AD2d 846;Matter of West, 13 AD2d 599), and despite
petitioner's obvious love and affection for Lois, where, as here, the evidence demonstrates that a
family member is incapable of providing necessary care, it is appropriate for County Court to
look elsewhere. The record is replete with evidence that respondent has provided necessary and
suitable care for Lois and that petitioner is both physically and mentally incapable of providing
such care. Denise McCarthy, a psychologist who examined petitioner, testified that petitioner
suffers from a “fixed delusional system” that interferes with her ability to make sound
judgments. The testimony at the hearing also established that petitioner was unable to lift Lois
out of bed or otherwise manage her, that she lacks the ability to recognize Lois' needs and that
she often refused to cooperate with Lois' caregivers. It is not insignificant that petitioner's
testimony at the hearing was unfocused, discursive and erratic. The record evidence concerning
petitioner's physical and mental health demonstrates that petitioner is not “suitable to exercise the
powers necessary to assist [Lois]” (Mental Hygiene Law § 81.19 [a] [1]) and *859 “unfit” to be
appointed her guardian (Mental Hygiene Law § 81.19 [b]).

We also reject petitioner's argument that a new hearing is required because Lois was not afforded
an opportunity to participate in the hearing pursuant to Mental Hygiene Law § 81.11. Even
assuming that Lois was required to be present at the 1993 hearing to remove respondent as
committee, the pertinent provisions of the Mental Hygiene Law were complied with. The record
amply supports County Court's finding that Lois was not present at the hearing “because of ill
health and her inability to [participate] meaningfully in the hearing” (see,Mental Hygiene Law §
81.11 [c] [2]).

Petitioner's remaining contentions, including her claim that County Court erred in denying her
motion for increased visitation and medical information regarding Lois, have been considered

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and found to be meritless.

Crew III, Casey and Peters, JJ., concur.
Ordered that the order and judgment, and amended order and judgment are affirmed, without
costs.

b. Article 81 permits a guardian to have “property management” or “personal
needs” powers

Property Management Powers- MHL §81.21

1. make gifts;

2. provide support for persons dependent upon the incapacitated person for support, whether or
not the incapacitated person is legally obligated to provide that support;

3. convey or release contingent and expectant interests in property, including marital property
rights and any right of survivorship incidental to joint tenancy or tenancy by the entirety;

4. exercise or release powers held by the incapacitated person as trustee, personal representative,
guardian for minor, guardian, or donee of a power of appointment;

5. enter into contracts;

6. create revocable or irrevocable trusts of property of the estate which may extend beyond the
incapacity or life of the incapacitated person;

7. exercise options of the incapacitated person to purchase securities or other property;

8. exercise rights to elect options and change beneficiaries under insurance and annuity policies
and to surrender the policies for their cash value;

9. exercise any right to an elective share in the estate of the incapacitated person's deceased
spouse;

10. renounce or disclaim any interest by testate or intestate succession or by inter vivos transfer
consistent with paragraph (d) of section 2-1.11 of the estates, powers and trusts law;

11. authorize access to or release of confidential records;

12. apply for government and private benefits;

13. marshall assets;

14. pay the funeral expenses of the incapacitated person;

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15. pay such bills as may be reasonably necessary to maintain the incapacitated person;

16. invest funds of the incapacitated person as permitted by section 11-2.3 of the estates, powers
and trusts law;

17. lease the primary residence for up to three years;

18. retain an accountant;

19. pay bills after the death of the incapacitated person provided the authority existed to pay such
bills prior to death until a temporary administrator or executor is appointed; and

20. defend or maintain any judicial action or proceeding to a conclusion until an executor or
administrator is appointed.

In addition to the above, you may wish to include an explicit provision that permits the
guardian to have access to any financial, including bank records of the incapacitated
person and to make any financial, including bank, transactions on behalf of the
incapacitated person.

You may also wish to make an explicit provision that the guardian have physical
access to the incapacitated person and to their home.

You might also want to permit the guardian to sell real and personal property and use
any proceeds for the benefit of the incapacitated person.

Personal Needs Powers– MHL §81.22

1. determine who shall provide personal care or assistance;

2. make decisions regarding social environment and other social aspects of the life of the
incapacitated person;

3. determine whether the incapacitated person should travel;

4. determine whether the incapacitated person should possess a license to drive;

5. authorize access to or release of confidential records;

6. make decisions regarding education;

7. apply for government and private benefits;

8. (i) for decisions in hospitals as defined by subdivision eighteen of section twenty-nine hundred
ninety-four-a of the public health law, act as the patient's surrogate pursuant to and subject to

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article twenty-nine-CC of the public health law, and (ii) in all other circumstances, to consent to
or refuse generally accepted routine or major medical or dental treatment, subject to the decision-
making standard in subdivision four of section twenty-nine hundred ninety-four-d of the public
health law;

9. choose the place of abode; the choice of abode must be consistent with the findings under
section 81.15 of this article, the existence of and availability of family, friends and social
services in the community, the care, comfort and maintenance, and where appropriate,
rehabilitation of the incapacitated person, the needs of those with whom the incapacitated person
resides; placement of the incapacitated person in a nursing home or residential care facility as
those terms are defined in section two thousand eight hundred one of the public health law, or
other similar facility shall not be authorized without the consent of the incapacitated person so
long as it is reasonable under the circumstances to maintain the incapacitated person in the
community, preferably in the home of the incapacitated person.

No guardian may:

1. consent to the voluntary formal or informal admission of the incapacitated person to a
mental hygiene facility under article nine or fifteen of this chapter or to a chemical
dependence facility under article twenty-two of this chapter;

2. revoke any appointment or delegation made by the incapacitated person pursuant to
sections 5-1501, 5-1601 and 5-1602 of the general obligations law, sections two
thousand nine hundred sixty-five and two thousand nine hundred eighty-one of the
public health law, or any living will.

II. Why are Article 81 Guardianships sought and who seeks them?

Mental Hygiene Law § 81.06 Who may commence a proceeding

(a) A proceeding under this article shall be commenced by the filing of the petition with the court
by:

1. the person alleged to be incapacitated;

2. a presumptive distributee of the person alleged to be incapacitated, as that term is defined in
subdivision forty-two of section one hundred three of the surrogate's court procedure act;

3. an executor or administrator of an estate when the alleged incapacitated person is or may be
the beneficiary of that estate;

4. a trustee of a trust when the alleged incapacitated person is or may be the grantor or a
beneficiary of that trust;

5. the person with whom the person alleged to be incapacitated resides;

6. a person otherwise concerned with the welfare of the person alleged to be incapacitated. For
purposes of this section a person otherwise concerned with the welfare of the person alleged to

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be incapacitated may include a corporation, or a public agency, including the department of
social services in the county where the person alleged to be incapacitated resides regardless of
whether the person alleged to be incapacitated is a recipient of public assistance;

7. the chief executive officer, or the designee of the chief executive officer, of a facility in which
the person alleged to be incapacitated is a patient or resident.

III. Who May Serve As Guardian?

Mental Hygiene Law §81.19 Eligibility as guardian

(a) 1. Any individual over eighteen years of age, or any parent under eighteen years of age, who
is found by the court to be suitable to exercise the powers necessary to assist the incapacitated
person may be appointed as guardian, including but not limited to a spouse, adult child, parent,
or sibling.

2. A not-for-profit corporation organized to act in such capacity, a social services official, or
public agency authorized to act in such capacity which has a concern for the incapacitated
person, and any community guardian program operating pursuant to the provisions of title three
of article nine-B of the social services law which is found by the court to be suitable to perform
the duties necessary to assist the incapacitated person may be appointed as guardian, provided
that a community guardian program shall be appointed as guardian only where a special
proceeding for the appointment of a guardian under this article has been commenced by a social
services official with whom such program was contracted.

3. A corporation, except that no corporation (other than as provided in paragraph two of this
subdivision) may be authorized to exercise the powers necessary to assist the incapacitated
person with personal needs.

(b) The court shall appoint a person nominated as the guardian in accordance with the provisions
of section 81.17 of this article unless the court determines the nominee is unfit or the alleged
incapacitated person indicates that he or she no longer wishes the nominee to be appointed.

(c) In the absence of a nomination in accordance with section 81.17 of this article, the court shall
appoint a person nominated by the person alleged to be incapacitated orally or by conduct during
the hearing or trial unless the court determines for good cause that such appointment is not
appropriate.

(d) In making any appointment under this article the court shall consider:

1. any appointment or delegation made by the person alleged to be incapacitated in accordance
with the provisions of section 5-1501, 5-1601 or 5-1602 of the general obligations law and
sections two thousand nine hundred sixty-five and two thousand nine hundred eighty-one of the
public health law;

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2. the social relationship between the incapacitated person and the person, if any, proposed as
guardian, and the social relationship between the incapacitated person and other persons
concerned with the welfare of the incapacitated person;

3. the care and services being provided to the incapacitated person at the time of the proceeding;

4. the powers which the guardian will exercise;

5. the educational, professional and business experience relevant to the nature of the services
sought to be provided;

6. the nature of the financial resources involved;

7. the unique requirements of the incapacitated person; and

8. any conflicts of interest between the person proposed as guardian and the incapacitated person.

(e) Unless the court finds that no other person or corporation is available or willing to act as
guardian, or to provide needed services for the incapacitated person, the following persons or
corporations may not serve as guardian:

1. one whose only interest in the person alleged to be incapacitated is that of a creditor;

2. one, other than a relative, who is a provider, or the employee of a provider, of health care, day
care, educational, or residential services to the incapacitated person, whether direct or indirect.

(f) Mental hygiene legal service may not serve as a guardian.

In the Matter of Ardelia R., Appellant. New York City Health and Hospital Corporation-
Elmhurst Hospital Center, Respondent. Raymond M., Nonparty Appellant; Suanne Linder
Chiacchiaro, Nonparty Respondent.
Supreme Court, Appellate Division, Second Department, New York
28 A.D.3d 485

April 4, 2006

CITE TITLE AS: Matter of Ardelia R.

HEADNOTES
Incapacitated and Mentally Disabled Persons
Appointment of Guardian for Personal Needs or Property Management

Since record established that 82-year-old appellant lacked understanding or appreciation of
nature and consequences of her functional limitations, finding that she was incapacitated person
requiring guardian was proper notwithstanding lack of medical testimony regarding her medical
condition.

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Incapacitated and Mentally Disabled Persons
Appointment of Guardian for Personal Needs or Property Management

Independent guardian was properly appointed for appellant since appellant's family members
were unsuitable—as there was evidence of undue influence in brother's actions to bring about
execution of power of attorney and evidence of impropriety in brother's management of
appellant's property, he was unsuitable to act as guardian; appellant's other two relatives were
likewise unsuitable or unwilling to act as guardian.

In a proceeding pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person
and property of Ardelia R., an alleged incapacitated person, Ardelia R. and nonparty Raymond
M. appeal, as limited by their brief, from so much of an order and judgment (one paper) of the
Supreme Court, Queens County (Thomas, J.), dated June 17, 2004, as, after a hearing, granted
the petition, determined that Ardelia R. was an incapacitated person, and appointed Suanne
Linder Chiacchiaro as guardian.

Ordered that the appeal by Raymond M. is dismissed, without costs or disbursements, as he is
not aggrieved by the portion of the order and judgment appealed from (seeCPLR 5511; Hayden v
Catholic Home Bur., 298 AD2d 557 [2002]); and it is further,

Ordered that the order and judgment is affirmed insofar as appealed from by the appellant
Ardelia R., without costs or disbursements.**2

The appellant Ardelia R. is an 82-year-old woman who was found in her home by Protective
Services for Adults without running water, food, electricity, or heat. When she presented to
Elmhurst Hospital Center, she was malodorous and frail and, thereafter, she was diagnosed with
dementia, hypertension, and coronary artery disease. She was unable to cook, and was known to
wander away from her home. She had forgotten where she banked and did not know her sources
of income. Although she owned a home and possessed approximately $115,000 in savings, she
was delinquent on her utility bills.

Based on these facts, the hearing record established by clear and convincing evidence that
Ardelia R. lacked the understanding or appreciation of the nature and consequences of her
functional limitations (see Mental Hygiene Law § 81.02 [b] [1], [2]). Thus, the Supreme Court's
finding that she was an incapacitated person requiring a guardian was proper notwithstanding the
lack of medical testimony regarding her medical condition (see Matter of Rosa B.-S. [William
M.B.], 1 AD3d 355, 356 [2003];Matter of Harriet R., 224 AD2d 625, 626 [1996]; cf. Matter of
Grinker [Rose], 77 NY2d 703, 711 [1991];Matter of Don *487 ald F.L., 210 AD2d 227, 228
[1994];Matter of Flowers [Dove], 197 AD2d 515 [1993]).

Moreover, the Supreme Court providently exercised its discretion in appointing an independent
guardian since the record established that Ardelia R.'s family members were unsuitable (see
Mental Hygiene Law § 81.19 [a] [1], [d]; Matter of Joseph V., 307 AD2d 469, 471 [2003]). After
admission to Elmhurst Hospital Center, Ardelia R. executed a power of attorney in favor of her
brother, the appellant Raymond M. The record demonstrates that Raymond M. told Ardelia R. to
sign the document without reading it and, thereafter, withdrew funds from her bank accounts and
failed to account for a substantial portion of those funds. As there was evidence of undue
influence in Raymond M.'s actions to bring about the execution of the power of attorney (see
Matter of Maher, 207 AD2d 133, 143 n [1994]) and evidence of impropriety in Raymond M.'s

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management of Ardelia R's property (see Matter of Nora McL. C. , 308 AD2d 445 [2003];Matter
of Rochester Gen. Hosp. [Levin], 158 Misc 2d 522, 528 [1993];cf. Matter of Maher, supra at
142-143), he was providently deemed unsuitable to act as guardian. Ardelia R.'s other two
relatives were likewise unsuitable or unwilling to act as guardian. Accordingly, the Supreme
Court properly appointed an independent guardian. Krausman, J.P., Spolzino, Lifson and Dillon,
JJ., concur.

.

In the Matter of J.M., Petitioner, for the Appointment of a Guardian of the Person and Property
of S.M., an Alleged Incapacitated Person
Supreme Court, Bronx County
13 Misc.3d 582

June 12, 2006

CITE TITLE AS: Matter of S.M.

HEADNOTE
Incapacitated and Mentally Disabled Persons
Appointment of Guardian for Personal Needs or Property Management
Convicted Felon Ineligible to be Guardian

Petitioner, having been convicted of an armed robbery for which he served nine years in prison,
was ineligible to be appointed as the guardian of the person and property of his mother, an
alleged incapacitated person. With limited exceptions, persons who have been convicted of a
felony or a recent misdemeanor are disqualified from being appointed as a guardian under Rules
of the Chief Judge (22 NYCRR) § 36.2 (c) (7). Petitioner's felony conviction, however, was not
disclosed by petitioner or his attorney, and was only discovered as a result of questions put to
him by the court. Part 36 of the Rules of the Chief Judge should be amended so as to provide
procedures for insuring that persons seeking appointment as guardians have not been convicted
of a crime, and that persons seeking appointment as guardians of a child have, in addition, not
been found responsible for child abuse or neglect and are not residing in a household with
someone found responsible for child abuse or neglect.

RESEARCH REFERENCES
Am Jur 2d, Guardian and Ward §§ 50, 88.

Carmody-Wait 2d, Proceedings for Appointment of Guardian for Personal Needs and Property
Management §§ 109:12, 109:14.

22 NYCRR 36.2 (c) (7).

NY Jur 2d, Infants and Other Persons Under Legal Disability §§ 370, 372.

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ANNOTATION REFERENCE
See ALR Index under Guardian and Ward.

FIND SIMILAR CASES ON WESTLAW
Database: NY-ORCS

Query: guardian /s personal /2 need & convict! /s felon*

APPEARANCES OF COUNSEL

Bonina & Bonina (Amy Insler of counsel), for petitioner.

OPINION OF THE COURT

Alexander W. Hunter, Jr., J.
*583 A petition has been filed for the appointment of a guardian of the person and property of
S.M., an alleged incapacitated person (hereinafter known as the person). The court, having been
satisfied that the person was served with the order to show cause and petition by personal
delivery at least 14 days prior to the return date and that all other persons required to be served
under Mental Hygiene Law § 81.07 were timely served with the order to show cause and
petition, appointed a court evaluator, Barbara V. Gurley, a social worker with the Mental
Hygiene Legal Service, First Judicial Department.

The hearing was held on June 8, 2006. The hearing was conducted in the absence of the person.
The person is in a vegetative and nonresponsive state of being, and is, therefore, unable to
comprehend this proceeding, nor is she able to offer her preference or desire regarding her needs
and wishes. As such, the person is unable to participate meaningfully in the hearing of this
matter, even if the hearing was conducted at her bedside. Her appearance was therefore waived.
Petitioner J.M. and Ms. Gurley testified at the hearing.

FINDINGS OF FACT

It is determined that the following findings of fact were established by clear and convincing
proof upon the documentary evidence submitted and the testimony adduced.

The petitioner, J.M., the person's son, states that the person suffered kidney failure two years ago
as a result of having diabetes and other illnesses. Due to kidney failure, she has since required
dialysis three times a week.

This past June, while undergoing surgery for removal of her gall bladder, the person suffered
medical complications which caused her current vegetative condition. She was removed to St.
Barnabas Nursing Home where she was placed on a ventilator. This nursing home was chosen
because it was one of only two facilities in New York City in which she could be ventilator
dependent and receive dialysis at the same time. Her prognosis for recovery is very poor.**2

The person was born in Panama and came to live in New York when she was in her 20s. She
married G.M., Sr. and had two sons, the petitioner and G.M., Jr., who resides in Portsmouth,
Virginia. The person and her husband had been separated for over 20 years. Whether they had
been divorced two years ago and whether he is still alive is unclear.

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