Subdivision (g) of 202.67 provides “No authorization will be granted to withdraw such funds, except for unusual circumstances, where the parents are financially able to support the infant and to provide for the infant’s necessaries, treatment and education.” Two separate standards for approval of withdrawal of funds are imposed under 202.67(g). Withdrawals for “unusual circumstances” those necessitated by the child’s disability-need not be predicated upon the parents’ inability to pay for them while those for “necessaries, treatment and education” must be supported by clear proof that the parents are too poor to provide them. An application for either expenditure must comply with 202.67(f) in that sufficient facts must be submitted to enable the court to determine, without conjecturing, that support of the child is not within the financial means of the parents. This is a departure from the DeMarco v. Seaman rule, which held that the child’s personal injury recovery was so inviolable that only extraordinary expenses justified withdrawals and that social agencies were to provide for a child’s support where parents financially could not.
Article 81 of Mental Hygiene Law sets forth the criteria and procedure for the appointment of guardian to manage the property and personal needs of a person who needs help with those medical activities.
Petitioner avers in her affidavit that VG turned 18 years old on December 21, 2008, that they reside in Waycross, Georgia, and that she recently commenced a proceeding in Georgia’s court system to become VG’s guardian. She contends that she and her son often depend on her brother’s 2001 Honda Odyssey for transport and that it will cost approximately $7,432.00 to fix its transmission and related mechanical problems brought about by car accident. The petition did not include a copy of the infant compromise order in the instant matter.
This presents an immediate problem because the infant compromise order must be examined to determine if the instant petition conflicts or complies with its directions. However, the court has examined the Kings County Clerk’s file and located the relevant orders applying its authority to take judicial notice of its own records. The final amended infant’s compromise order, dated August 23, 1999, is signed by Justice William Gary and contains the following pertinent direction: “Ordered that upon the infant plaintiff attaining the age of 18 years, or the statutory age of majority at that time provided, he shall appear before the Court at Special Term Part 76, for determination as to his ability to handle his affairs.”
Unless there has been an appointment of a guardian ad litem, as provided by CPLR § 1202, a person under the age of 18 may only appear by one of the other representatives enumerated in CPLR § 1201. These would include a guardian of the property, or if there be none, a parent having legal custody, or if no such parent, by another having legal custody, or if the infant is married, by an adult co-resident spouse.
Under current New York State law an infant is a person who has not attained the age of eighteen years (CPLR § 105[j]). Therefore, VG reached the age of majority on December 21, 2008. As a general rule an adult is presumed competent to manage his own affairs. However, in this instance, Justice Garry’s order requires that VG present himself to the court to demonstrate his capacity. This raises the following question. Until such time as VG presents himself to the court to demonstrate his capacity, does his mother remain the guardian of his property and therefore have standing to make the instant application? Does she have to commence a proceeding pursuant to Article 81 of the Mental Hygiene Law to obtain that authority. If she must do, who has the authority to make the instant application in the interim assuming there is an emergent need?
The court believes that she does not have standing based on her son’s presumed competency as an adult. However, she may commence a proceeding pursuant to Article 81 of the Mental Hygiene Law in order to obtain such injury authority.
Therefore, assuming that the petitioner does not have the authority, then the application must be denied for lack of standing. Assuming, for the sake of argument, that the petitioner may still act as guardian of VG’s property, and has standing to make the instant application, it must be denied for the reasons set forth below.
The petition does not set forth the details required pursuant to 22 NYCRR 202.67(f). The few details that were provided make it abundantly clear that the money sought is for the repair of a vehicle in which neither the guardian nor the infant has any ownership or property interest. It appears to be an expenditure for the benefit of the infant’s uncle who apparently helps the guardian and infant by transporting them. There is no showing that such an expenditure would be in the best interest of the infant. Furthermore, it make little economic sense to spend over $7,000.00 to repair a nine year old automobile. Ultimately, the infant trust funds are for the hurt and injury sustained by the infant. They are not community property for family use.
Accordingly, the application to release part of the infant’s settlement proceeds for the reasons set forth is denied.